No. 86-496 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

GEORGE SCHMIDT, 

Claimant and Appellant, 

-vsPROCTOR & GAMBLE, Employer, 

and 

HOME INSURANCE COMPANY, 

Defendant and Respondent. 

APPEAL FROM: The Workers' Compensation Court, The Honorable 

Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Thueson Law Office; Erik B. Thueson, Great Falls, 

Montana 

For Respondent: 

Marra, Wenz, Johnson & Hopkins; Thomas A. Marra, 

Great Falls, Montana 

JUN 3- lggt 

Submitted on Briefs: March 5, 1987 

Decided: June 3, 1987 

Filed: 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Claimant appeals an order of the Workers ' Compensation 

Court denying him benefits because he did not file his claim 

within one year as required by § 39-71-601, MCA. We affirm. 

Claimant George Schmidt was hired by Proctor and Gamble 

in March 1984, as a part-time merchandiser to service stores 

in western Montana which carry its products. He assisted 

salesmen in specific markets by building displays, resetting 

shelving in stores, checking prices and putting up sale 

material. Schmidt had held a number of jobs before this one, 

including assistant operator for Montana Power Company, 

salesman for Sears, sales and light delivery for Modern 

Equipment Company and Eklund Television and Appliance. Since 

May 1981 he was in the insurance business, except for the 

period of approximately eight months between March 1984 and 

December 1985, when he worked for Proctor and Gamble. 

Schmidt claims he injured his back July 16, 1984, while 

restocking shelves in the Inland Market in Kalispell, 

Montana. One leg of the display case fell toward him and he 

had to catch it abruptly. The falling boxes did not knock 

him over, but in holding up the shelf he experienced a sudden 

pain in his lower back. There were several unnamed witnesses 

to this incident who were in the general area of the store at 

the time. Schmidt listed one Shirley Diaz as a witness in 

the pretrial order but she was not called to testify at 

trial. Schmidt made no report of the incident to his 

employer, although he told his wife, who was in the store at 

the time it happened. 

A year later the Schmidts traveled from Great Falls by 

automobile to visit their children in Utah. Two days before 

leaving, Schmidt had helped his son change a tire. In 

Pocatello, Idaho, he experienced such severe pain in his 
lower back his wife drove him to the Pocatello Regional 

Medical Center emergency room. He told the emergency room 

staff he pulled his back while changing a tire. He did not 

mention the accident the previous July, nor did he tell the 

doctor of any previous back problems. He was put in traction 

and given medication for several days. 

After he returned to Great Falls, Schmidt was seen by 

Dr. Alexander Johnson, a neurosurgeon. Schmidt did not 

inform Dr. Johnson of the incident at Inland Market. Schmidt 

also was examined by Dr. Thomas Power, an orthopedic surgeon. 

Apparently Dr. Power was not informed of the tire changing 

incident. Schmidt, however, had told Power he had 

experienced back problems for more than twenty years which 

developed into pain in his left buttock and leg in early July 

1985. 

Prior to undergoing surgery in August 1985, Schmidt 

notified Drs. Johnson and Power he had applied for veterans' 

pension benefits, workers' compensation benefits and 

Medicaid. The claim for workers' compensation benefits 

filed August 18, 1985, more than one year after the incident 

in Kalispell, was denied. Schmidt then petitioned for an 

emergency hearing and a trial was held. Schmidt appeals the 

resulting judgment denying him benefits. 

We are asked to decide whether the Workers' 

Compensation Court abused its discretion in denial of 

benefits to Schmidt because he failed to file notice of the 

accident claimed to have caused the injury. 

Our function in reviewing a decision of 

the Workers' Compensation Court is to 

determine whether there is substantial 

evidence to support the findings and 

conclusions of that court. We cannot 

substitute our judgment for that of the 

trial court as to the weight of the 

evidence on questions of fact. Where 

there is substantial evidence to support 

the findings of the Workers' Compensation 
Court, this Court cannot overturn the 

decision. [Citations omitted.] 

Sharp v. Hoerner Waldorf Corp. (19781, 178 Monte 419, 423, 

584 P.2d 1298, 1300. After carefully reviewing the record, 

we defer to the findings of the Workers' Compensation Court. 

Schmidt testified he was injured July 16, 1984. The 

only named witness to the accident was not called to testify. 

Schmidt testified he notified his supervisor, Bruce 

Hammerman, of the incident the next day by telephone. 

Hammerman denied any call took place, and testified, with 

documentation, he was in Los Angeles the day the call 

supposedly was made. Schmidt produced no records from the 

telephone company showing the call was made. 

At the end of each week, Schmidt was required to fill 

out in triplicate "Part-Time Merchandiser Expense Reports," 

showing date worked, cities and stores traveled to, monetary 

allowance, etc. One copy was sent to the home office, one to 

Hammerman, and Schmidt kept a copy. The home office copy and 

Schmidt's copy were offered into evidence. Schmidt's copy 

had the words "hurt back Inland Market" penciled on it; 

however the home office copy did not. Hammerman testified 

his copy did not have those words on it. 

The Workers' Compensation Court did not find that 

either of these incidents constituted notice to the employer 

pursuant to § 39-71-601 or § 39-71-603, MCA, nor do we. 

Section 39-71-601, MCA, states: 

Statute of limitation on presentment of a 

claim -- waiver. (1) In case of personal 

injury or death, all claims shall be 

forever barred unless presented in 

writing to the employer, the insurer, or 

the division, as the case may be, within 

12 months from the date of the happening 

of the accident, either by the claimant 

or someone legally authorized to act for 

him in his behalf. 
(2) The division may, upon a reasonable 

showing by the claimant of lack of 

knowledge of disability, waive the time 

requirement up to an additional 24 

months. 

Our case law on the exceptions noted in subsection (2) 

involve waiver, estoppel and laches on the part of the 

parties. We find here that there is no waiver, estoppel or 

laches on the part of the employer; rather the employee 

failed to convince the Workers1 Compensation Court that he 

gave his employer proper notice. In Devlin v. Galusha, 

Higgins & Galusha (1982), 202 Mont. 134, 655 P.2d 979, we 

held that there is no duty of an employer to solicit a claim 

where an employee who injured herself informed the supervisor 

that she did not wish to file a compensation claim, but 

subsequently did. In that case the Workers' Compensation 

Court found that the claim was barred by the twelve month 

statute of limitations, thus, there were no grounds upon 

which to hold that the employer and insurer could be estopped 

from raising the statute of limitations. As to the 

equitable estoppel theory see Bagely v. Hotel Florence Co. 

(1974), 165 Mont. 145, 526 P.2d 1372; and Ricks v. Teslow 

Consolidated (1973) 162 Mont. 469, 512 P.2d 1304. 

We held where the claimant for compensation did not 

file his claim within the time required by § 39-71-601, MCA, 

the defendant employer was not required to file an answer or 

state a defense orally before the Industrial Accident Board 

(now the Division of Workers' Compensation). Claimant's 

assertion that because of such failure the employer waived 

its rights to make a defense was without merit. Williams v. 

Anaconda Copper Co. (1934), 96 Mont. 204, 29 P.2d 649. 

We have long held the notice requirement of 

§ 39-71-603, MCA, ''is mandatory and compliance with its 

requirements is indispensable to maintain a claim for 

compensation." Maki v. Anaconda Copper Mining Co. (1930), 87 
Mont. 314, 323, 287 P. 170, 173; Hunt v. Sherwin Williams 

(Mont. 1981), 624 P.2d 489, 492, 38 St.Rep. 358, 361. 

Schmidt argues Proctor and Gamble waived this statutory 

limitation by representations giving rise to equitable 

estoppel. Lindblom v. Employers Liability Assurance Co. 

(1930), 88 Mont. 488, 494, 295 P. 1007, 1009. We set out the 

elements of equitable estoppel in Lindblom: 

1. There must be conduct--acts, language, 

or silence--amounting to a representation 

or a concealment of material facts. 2. 

These facts must be known to the party 

estopped at the time of his said conduct, 

or at least the circumstances must be 

such that knowledge of them is 

necessarily imputed to him. 3. The truth 

concerning these facts must be unknown to 

the other party claiming the benefit of 

the estoppel, at the time when it was 

acted upon by him. 4. The conduct must 

be done with the intention, or at least 

with the expectation, that it will be 

acted upon by the other party, or under 

such circumstances that it is both 

natural and probable that it will be so 

acted upon. * * * 5. The conduct must be 

relied upon by the other party, and, thus 

relying, he must be led to act upon 

it. 6. He must in fact act upon it in 

such a manner as to change his position 

for the worse; in other words, he must so 

act that he would suffer a loss if he 

were compelled to surrender or forego or 

alter what he has done by reason of the 

first party being permitted to repudiate 

his conduct and to assert rights 

inconsistent with it. 

88 Mont. at 494-495, 295 P. at 1009. 

Questions of estoppel can arise in various ways through 

actions of the employer. The employee can be lulled into 

inaction. Wassberg v. Anaconda Copper Co. (Mont. 1985) , 697 

P.2d 909, 916, 42 St.Rep. 388, 395, citing Mc~askle v. 

Industrial Com'n of Arizona (Ariz. 1982), 659 P.2d 1313, 

1316. The employer can take positive action which either 
prevents a claimant from filing a timely claim or leads him 

reasonably to believe he does not need to file a claim 

[citing cases]. Wassberg, supra at 916, 42 St.Rep. at 396, 

citing Davis v. Jones (Mont. 1983), 661 P.2d 859, 860, 40 

St.Rep. 570, 571-572. 

There is no support for Schmidt's claim. The record 

does not show Proctor and Gamble discouraged or in anyway 

influenced Schmidt from filing a claim. An employer has no 

affirmative duty to inform the claimant of the right to file 

a claim. The duty to act is on the employee. Wassberg, 

supra at 916, 42 St.Rep. at 396. We do not find that the 

first element of equitable estoppel, set out in Lindbolm, 

supra, is met. Nor is Schmidt's contention he notified 

Hammerman by way of a phone call and on the Merchandizer 

Expense Report supported by the record. 

Schmidt claims even if the Workers' Compensation Court 

did not accept his statement of facts, his claim for 

compensation nevertheless was timely filed because his injury 

was a latent injury and the statute of limitations is not 

relevant. Section 39-71-601 (2) , MCA, says, "The division 

may, upon reasonable showing by the claimant of lack of 

knowledge of disability, waive the time requirement up to an 

additional 24 months." 

The record does not show that Schmidt was without 

symptoms of the claimed accident in July 1984. We have said 

"that the time period for notice of claim does not begin to 

run until the claimant, as a reasonable man, should recognize 

the nature, seriousness, and probable compensable character 

of his latent injury." Bowerman v. Employment Security 

Commission (Mont. 1983), 673 P.2d 476, 479, 40 St.Rep. 2062, 

2065. There is no evidence Schmidt was unaware of his 

disability. He testified he felt a sharp pain in his back at 

the time of the July 14, 1984 incident and continued to have 

back problems through July 1985. He testified he purchased a 
back brace in August 1984 to help him sleep. He testified he 

had leg pains in October and November 1984. Yet he did not 

seek any medical attention during this time, as would a 

reasonable man under such circumstances. There is no credible 

evidence Schmidt lacked knowledge of the nature, seriousness, 

and probable compensable character of a latent injury. 

We find the medical testimony offered to show gradual 

development of a herniated disc is not relevant to 

corroborate the existence of an industrial accident. It goes 

only to show the medical condition of Schmidt's back. The 

issue of a compensable injury is not before this Court, 

because clearly Schmidt did not notify his employer of an 

accident within the statutory time. 

The order of the Workerst Compensation Court is 

affirmed. 

.---- 

We concur: _-H .-- 

oj$j& 

Justices