No. 12419 

IN THE SUPKEME COURT OF THE STATE OFPDNTANA 

JIMMY A. RICKS, 

Plaintiff and Respondent, 

TESLOW CONSOLIDATED and ARGONAUT 

INSURANCE COMPANY, 

Defendants and Appellants. 

Appeal from: District Court of the Eighteenth Judicial District, 

Honorable W. W. Less ley, Judge presiding. 

Counsel of Record: 

For Appellants : 

Harris, Jackson and Utick, Helena, Montana. 

Vern Harris argued, Helena, Montana. 

For Respondent : 

Bolinger and Wellcome, Bozeman, Montana. 

Page Wellcome argued, Bozeman, Montana. 

- 

Submitted: April 25, 1973 

Decided : J~L 2 6 lgn 

Filed : JUL 2 6 1975 
Mr. Justice Castles delivered the Opinion of the Court. 

This is an appeal from an amended judgment of July 30, 1971, 

and a supplementary judgment entered on October 17, 1972, entered 

by the district court in Gallatin County on findings of fact and 

conclusions of law in favor of a claimant for workman's compensation. 

Through a hearing before the Industrial Accident Board on 

June 3, 1970, claimant Jimmy A. Ricks sought workmen's compensation, based upon his claim for compensation which had been filed 

with the Board over three years and seven months after the date 

of his accident. The Industrial Accident Board (hereinafter 

called the Board) denied compensation. 

Claimant appealed to the district court and was awarded 

compensation for 500 weeks, at the rate of $50 per week, payable 

in a lump sum. Subsequently, the district court entered an 

amended order nunc pro tunc which awarded compensation for a 

period not to exceed 500 weeks and deleted the provision for payment 

in a lump sum. Defendants appealed the amended judgment to this 

Court. 

The appeal resulted in a per curiam order, dated February 7, 

1972, wherein this Court stated: 

"IT IS ORDERED that the cause be remanded to the 

State Industrial Accident Board and that said Board 

conduct a hearing into the element of estoppel based 

upon the action or inaction of the attorneys for 

Teslow Consolidated while representing claimant's 

interests. I' 

A second hearing was held before the Board on May 19, 1972, 

pursuant to this court's order. On June 7, 1972, the hearings 

officer entered a memorandum opinion and findings of fact and 

conclusions of law denying compensation. The decision of the 

hearings officer was adopted by the Board by order dated July 

12, 1972. 

On claimant's second appeal to the district court, that 

court entered additional findings of fact and conclusions of law 
and a supplementary judgment which reversed the decision of the 

Board and awarded compensation for a period not to exceed 500 

weeks. Defendants appeal from the district court's amended 

judgment of July 30, 1971, and from the court's supplementary 

judgment of October 17, 1972. 

The sole issue here is: Did the district court err in 

reversing the decision of the Board and in entering judgment 

for payment of 500 weeks of workmen's compensation? 

On or about April 27, 1966, while in the employ of Teslow 

Consolidated, claimant Jimmy A. Ricks sustained an accidental 

injury in the nature of a puncture would below his left patella. 

He also complained of a foreign body in his right eye. The 

knee was cleansed and dressed by Dr. J.M.Brooke of Ronan, Montana, 

and claimant's eye was examined, but no foreign body was found. 

Dr. Brooke indicated claimant would possibly be off work one day, 

but would not incur any permanent disability. 

On April 29, 1966, Ricks was seen by Dr. A. L. Vadheim of 

Bozeman, who indicated Ricks would be partially disabled for 

two weeks. Ricks was seen periodically following April 29, 1966, 

by Dr. Vadheim and ultimately by Dr. Francis Kelly, an orthopedic 

surgeon, in consultation on February 10, 1967, following which 

physical therapy was recommended. Dr. Kelly diagnosed Ricks' 

difficulty as an inflamation of the left kneecap, termed chondromalacia patella, involving the back surface lining of the kneecap 

and he injected the knee several times with cortisone. 

Sometime after August 1, 1966, Ricks contacted Mr. H.A. 

Bolinger, an attorney and stockholder for two of the four Teslow 

Companies that owned Teslow Consolidated, who then was preparing 

a suit for damages against the other party or parties involved in 

the accident. At the time of either the first or second visit with 

Mr. Bolinger, Ricks engaged Bolinger to look after his legal interests in connection with the accident. Ricks was made a party 

 lai in tiff in the suit for damages along with his employer, Teslow 

Consolidated. This suit was eventually settled to the advantage 
of plaintiffs, with Ricks receiving a net amount (after attorneys' 

fees and costs of some $4,100 to $4,700) of $8,800 to $8,900. 

During the statutory time for filing a claim for compensation 

there was only one attorney (Mr. Bolinger) for Teslow Consolidated 

involved with claimant Ricks. Two other attorneys entered the 

case at varying times later, but neither was in the case within 

one year after the accident. Mr. Andriolo became involved when 

he became associated with Bolinger in July or August of 1967. 

Mr. Wellcome, also upon becoming associated with Mr. Bolinger, 

was not involved until 1969. 

On December 1, 1969, over three years and seven months after 

the date of the accident, Ricks filed a claim for workmen's compensation. 

Defendant, Argonaut Insurance Co., paid medical benefits 

through May 20, 1970, totaling $231. This sum represents all 

medical bills submitted on the claim with the exception of one 

bill from Dr. Kelly in the amount of $25 for a report to the 

Department of Labor and Industries in the state of Washington. 

On April 5, 1971, the Board entered its first findings of 

fact and conclusions of law. In its conclusions numbered I1 and 

111, the Board held specifically: 

"11. That the claimant filed a claim for compensation after the statutory period as set forth in 

Section 92-601, R.C.M. 1947, had expired. 

"111. That the evidence is insufficient to establish that the defendant carrier because of their 

actions in this instant case are equitably estopped 

from raising the defense of the statute of limitat ions. I I 

Upon the first appeal the matter was submitted to the district 

court on the transcript from the Industrial Accident Board and no 

new evidence was offered. 

On June 23, 1971, the district court entered its findings of 

and 

fact,/conclusions of law, reversing the Board. As a basis of 

reversal, the court held that defendant Argonaut Insurance Co. 

was equitably estopped from raising the defense of the statute of 

limitations, as set forth in section 92-601, R.C.M. 1947. The 
court further held that defendant Argonaut Insurance Co. had a 

duty to obtain a claim for compensation from the plaintiff and 

to advise him it must be filed within one year from the date 

of the accident. 

The facts upon which the court based its conclusions relate 

to the actions of ~rgonaut's agent, George Wood. The court found 

that Wood had a certain expertise in the workmen's compensation 

field and that his office normally followed a procedure of sending 

a claim for compensation form to a claimant and advising claimant 

he must file his claim within twelve months of the date of the 

accident in cases where the physician's first report or the 

employer's report indicates a loss of time in excess of seven days. 

The court found this procedure was not followed in the instant case. 

It further found that Wood failed to send a copy of Dr. Vadheim's 

first report to the Board, although Wood normally would have done 

so. The court did not explain how the failure to forward Dr. 

~adheim's report in any way prejudiced or affected the claimant. 

Finally, the court based its conclusion of equitable estoppel on 

the fact that defendant Argonaut Insurance Co. had "notice of the 

continuing difficulty which the plaintiff was experiencing by 

and through medical reports * * *.If 

Defendants filed formal exceptions to the court's findings 

and conclusions, which were subsequently denied. 

The testimony is undisputed that claimant Ricks had never 

had any contact whatsoever with anyone connected with Argonaut 

Tnsurance Co. up to the date of the hearing before the Board. 

There was nothing between claimant and the Argonaut Insurance Co. 

or the Board toward making a claim, prior to the actual filing 

of the claim. Counsel for claimant made some obscure references 

in the first hearing to something between claimant and attorneys 

for the employer, Teslow Consolidated, who were also attorneys for 

claimant, but any contention of anything in the nature of an 

estoppel in this respect was abaondoned until after this Court's 
order of February 7, 1972. Counsel's letter of January 21, 1971, 

to the chairman of the Board stated: "* * Jc we will withdraw the 

contention which we made before the Board pertaining to an element 

of estoppel being based upon any action or inaction of the attorneys for Teslow, Inc. * * *" After this court's order of February 

7, 1972, claimant reasserted an issue of estoppel based upon the 

actions or inactions of claimant's and employert s counsel. 

At the second hearing before the Board on my' 19, 1972, 

Mr. Bolinger testified: 

"Q. Then at that time, when these notes were made, 

did you agree to represent Mr. Ricks with any legal 

problems he might have as a result of the accident? 

"A. 1'm sure I did. He was a party-plaintiff in 

the accident case, and 1'm sure I was representing 

him in whatever there was, yes. 

"Q. Do you have any specific recollection at this 

time as to any further discussion of the industrial 

accident claim? 

"A. I don't have any distinct recollection of it. 

He was off 11 days, it seems to me, and I thought 

he wasn't off long enough to present a claim, and 

he had this large family he was having to support, 

is all I remember about it. I I 

On cross-examination, Mr. Bolinger testified: 

"Q. In answer to Mr. Wellcome's question as to 

whether or not you discussed workmen's compensation 

with Mr. Ricks, that phase of this accident,'you 

said, I believe, you must have discussed it to some 

extent'. Do I understand correctly you meant to the 

extent of these notes in Exhibit No. l? 

'A. Yes, there's a couple things in that that would 

have pertained to it, like the time he was off, and 

the reference at the bottom. I would have had to have 

talked about industrial accident or workmen's compensation to have written those notes. 

"Q. Of course, those matters could also have pertained 

to any claim against the driver and owner of the tractor, 

could they not, loss of time and claim for medical benefits? 

1 "A. Well, yes, but the reference there that Industrial 

paid bills', means an industrial accident had to be 

mentioned at the time. 

"Q. But you might have been interested in that from 

the standpoint of a claim against the third party as 

owner of the tractor and driver of the tractor? 

"A. That would be true. 
"Q. And do I understand correctly that you don't 

have any independent recollection of discussing 

the industrial accident phase with Mr. Ricks at 

the time these notes were made? 

"A. Other than I remember him telling me he 

had so much family he'd have to go back to work 

sooner than he thought he should because he 

couldn't get by on what compensation he could 

get. I do remember that. 

I I Q. You didn't make any note on that on 

Exhibit No. l? 

'A. No. 

"Q. And that's the only thing you recall independently of this memorandum then? 

"A. I think that's correct, that's the only 

independent recollection I have of it. 1'm 

inclined to think that when he was only off 

11 days, I told him it wasn't worth putting in 

a claim. 

"Q. you're not sure whether you told him that 

or not7 

"A. Well, I would think I did, but I can't 

remember saying the words. I remember definitely 

his talking about his large family, I remember that. 11 

claimant's recollection of any discussion of a compensation 

claim with Mr. Bolinger was also extremely hazy as to precisely 

what was said and when. In fact, claimant had testified at the 

first Board hearing that he had discussed the subject of the claim 

filing requirement within a year of the accident date with Mr. 

Andriolo and Mr. Andriolo had advised him as to the filing reAt the second hearing, claimant changed his story and stated 

that he had not discussed the filing requirements until after the 

filing period had expired. Also, at the second hearing, claimant 

changed his story as to how he came to see Mr. Bolinger in the 

first place. Under cross-examination at the first hearing, claimant 

finally admitted that it was his idea to contact Mr. Bolinger and 

use the same lawyer as Teslow Consolidated. At the second hearing, 

claimant testified that he first saw Bolinger at the request of 

someone with Teslow Consolidated. 

There is no dispute, however, to the fact that claimant 

retained Mr. Bolinger to represent him in connection with his 
injuries within the one year claim filing period. 

On June 7, 1972, the Board entered its findings of fact and 

conclusions of law: 

"FINDINGS OF FACT 

"I. That there is no dispute that the Claimant 

suffered an accidental injury arising out of and 

in the course of his employment with Teslow, Inc. 

on April 27, 1966, in Lake County, Montana. 

"11. That the Claimant received medical benefits 

pursuant to the provisions of Section 92-706, 

R.C.M. 1947. 

"111. That no Claim for Compensation was filed 

within the statutory time for filing as required 

by Section 92-601, R.C.M. 1947. 

"IV. That the Claimant was summoned to the office 

of Mr. H. A. Bolinger, an attorney at Law, for the 

purpose of providing eye witness information to be 

used in preparation of a suit for damages in a Court 

of Law on behalf of the Claimant's employer, Teslow, 

Inc . 

"V. That Bolinger was a stock holder in two of the 

four corporations that owned Teslow, Inc., and 

further that Bolinger was and had been an attorney 

on a retainer and additional fee basis for the Teslow 

interests for a number of years prior to and at the 

time of his association with the Claimant. 

"VI. That the Claimant, subsequent to his meeting with 

Bolinger, became a party plaintiff along with Teslow, 

Inc. in a suit for damages filed in the 4th Judicial 

District, Polson, Montana, on November 9, 1967, against 

another party or other parties, and that Bolinger acted 

as attorney in the common interests of both the Claimant 

and Teslow, Inc. and further that the Claimant retained 

Bolinger to represent his legal interests in connection 

with the accident. 

"VII. That Bolinger pursued the interests of his clients, 

the Claimant and Teslow, Inc., to the point of a settlement without the necessity of a court decision. 

"~111. That the Claimant lost eleven (11) days work 

due to the injuries received in the accident Ghich 

occurred on April 27, 1966. 

"IX. That Pursuant to the provisions of Section 92-701, 

R.C.M. 1947 as this section stood in April 1966 the 

Claimant would have been entitled to four (4) days of 

compensation at the rate of $56.00 per week or a total 

of $32.00 for temporary total disability had a timely 

claim been filed. 

"X. That the matter of Workman's Compensation was only 

briefly discussed between the Claimant and Attorney 

Bolinger and that Bolinger mistakenly believed that the 

Claimant had not lost sufficient time from work to be 

entitled to receive compensation. 
"XI. That Atcorney Andriolo, an associate of 

Rolinger, did not enter the case or discuss the 

case with the Claimant until after the statutory 

time for filing a claim had run. 

"XII, That the preponderance of evidence fails to 

reveal that any of the elements of equitable estoppel, 

or estoppel in pais, are or were present during the 

statutory twelve (12) month period subsequent to the 

date of the accident. 

"I. That the Claimant was entitled to medical 

benefits under the provisions of Section 92-706, 

R.C.M. 1947. 

"11. That no Claim for Compensation was filed by 

the Claimant or someone legally authorized to act 

in his behalf within the time period described in 

Section 92-601, R.C.M. 1947 and as a result the 

Claimant is not entitled to compensation under the 

provisions of the workman's Compensation Act, I' 

Upon the second appeal to the district court, the matter was 

again submitted to the court on the transcript from the Board and 

no new evidence was offered. 

On October 11, 1972, the district court entered its findings 

of fact and conclusions of law, reversing the Board. The court 

adopted its previous findings and conclusions and added thereto 

an additional ground for equitable estoppel based on the "actions, 

statements and assurances" of the attorneys for the defendant, 

Teslow Consolidated, who also represented the claimant. 

The court, in its amended order of July 27, 1971, and reaffirmed in its supplementary judgment of October 17, 1972, held 

that claimant was permanently disabled as a result of his accidental 

injury and was thereby entitled to compensation for a period not 

to exceed 500 weeks. This holding was based upon the court's first 

findings of fact that claimant had sustained further injuries in 

addition to the puncture wound below his left patella. The 

claimant's other injuries relied on by the court are set forth in 

its findings of fact as "sand in his eye", "a tender left second 

toe1', "a contusion of the left thigh", and "a mental condition 

* Jc * which manifested itself in his being afraid to drive a truck 

and feeling that other vehicles coming towards him were in the 

process of crossing over the center line so as to strike the truck 

which he was driving. 11 
Dr. ~rooke's first report, as well as claimant's own testimony, indicates that the sand in claimant's eye was nothing of 

significance. Claimant testified that he had a piece of glass 

in his eye which he removed himself. Dr. ~rooke's first report 

indicates that he examined claimant's eye and found no foreign 

body. Claimant, on cross-examination, testified: 

"Q. You haven't had any trouble with your 

eye since this accident? 

"A. NO. II 

The only references in the record to a tender left second 

toe and a contusion of the left thigh occur in the initial reports 

and billings of Dr. Vadheim. An examination of Dr. ~elly's testimony before the Board reveals that claimant's only complaint to 

him was the problem with his left knee. In fact, claimant's 

attorney stated: 

"Q. (By Mr. Harris) Maybe I can shorten my 

cross-examination of the doctor, if I ask Mr. 

Wellcome one question---are you claiming anything in this procedure for any injury other 

than to the knee? 

"MR. IELLCOME: Only insofar as to what Mr. 

Ricks has already testified to about the 

emotional problems which he has had in driving 

a truck and the fear that other trucks or cars 

are coming across the center line which affects 

his ability to drive also, as a result of this 

accident. 1 I 

As to the "mental problem", the only evidence in the record 

is the unsubstantiated, self-serving testimony of the claimant. 

There is no indication whatsoever that claimant ever sought treatment for his "problem", or, for that matter, that he ever mentioned 

it to his doctors. There is no medical testimony corroborating the 

existence of this "problemf'. In fact, the record is completely 

devoid of any medical testimony connecting this "problem" to the 

accident of April 27, 1966. 

It is apparent the Board felt the evidence insufficient to 

support a finding of any other injuries when it found: 

"That the medical evidence reveals the claimant is 

suffering from an inflamation of the knee, termed 

Chrondromalacia patella, which max possibly necessitate surgery at some future time. 
4s set out heretofore, the issue is whether the district 

court erred in reversing the decision of the Board and in entering 

judgment for payment of 500 weeks of workmen's compensation. 

It is defendants' position that the district court erred in 

granting any compensation whatsoever because a claim for compensation was not filed until long after the statute of limitations 

set forth in section 92-601, R.C.M., had expired; and there are 

absolutely no facts in the case which would justify the imposition 

of an equitable estoppel against the insurer. 

This Court in Becktold v. Industrial Accident Board, 137 Mont. 

119, 125, 350 P.2d 383, said: 

"1f the evidence does not clearly preponderate against 

the findings of the Board, the district court must affirm the ~oard's order. Moffett v. Bozeman Canning Co., 

95 Mont. 347, 26 Pac.2d 973." 

Here, the question is, in thelanguage of section 92-834, 

R.C.M. 1947: 

l'* * * whether or not the findings of the board ought 

to be sustained, and whether or not such findings are 

reasonable under all the circumstances of the case. I I 

In Moffett v. Bozeman Canning Co., 95 Mont. 347, 351, 26 

P.2d 973, we said: 

"The case came to the district court with the DresumDtion that the board had decided correctly. [ciiing 

cases ] I' 

See also: Kerns v. Anaconda Copper Mining Co., 87 Mont. 546, 

289 P. 563. 

Was the Board arbitrary in finding that the evidence was 

insufficient to establish an equitable estoppel against the 

defendant carrier? 

This Court in Meznarich v. Republic Coal Co., 101 Mont. 78, 

93, 53 P.2d 82, said: 

"The board's decision on this question can only be 

reversed if arbitrary and founded on no substantial 

evidence. I I 

claimant's accident of April 27, 1966 did not result in any 

claim for compensation being filed until December 1, 1969, or over 

three years and seven months thereafter. The Montana workmen's 
Compensation Act has two requirements : (1) section 92-807, R.C.M. 

1947, which requires notice in sixty days after the accident; and 

(2) section 92-601, R.C.M. 1947, which provides: 

I I In the case of personal injury * * * all claims 

shall be forever barred unless presented in writing * * * within twelve months from the date of the 

happening of the accident, either by the claimant 

or someone legally authorized to act for him. II 

This Court, deeming section 92-601, R.C.M. 1947, to be a 

I1 sratute of limitations" has developed an exception known as 

I I estoppel1'. This doctrine of estoppel applies where employer, 

insurer, or Board as the case may be, has taken some positive 

action which either prevents the claimant from making a claim 

or leads him reasonably to believe he need not file such a claim. 

This Court has seen fit to apply the doctrine of estoppel only 

where there have been affirmative acts before the statutory period 

has run which either prevent the claimant from filing or lead 

him to believe he need not do so. 

The first case in Montana dealing with estoppel was Lindblom 

v. ~m~lo~ers' Etc. Assur. Corp., 88 Mont. 488, 295 P.2d 1007, 

where it was held that an estoppel would be applied as to the 

failure to file a claim where the agent of an insurance company 

led the worker to believe his claim would be settled, In McCoy 

v. Mike Horse Mining Co., 126 Mont. 435, 252 P.2d 1036, the injured 

workman was told by the company doctor that he had not been injured. 

In Levo v. Gen.-Shea-Morrison, 128 Mont. 570, 280 P.2d 1086, the 

injured worker was told by a company lawyer and the company personnel manager that his claim was not covered for workmen's compensation. In Gugler v. Industrial Accident Board, 117 Mont. 38, 157 P. 

2d 89, the city clerk and mayor of the city of Hamilton informed 

plaintiff that it was not necessary for him to file a claim with 

the Board. In Yurkovich v. Industrial Accident Board, 132 Mont. 

77, 314 P.2d 866, a Plan 111 case, the claimant wrote to the Board, 

inquiring as to what he should do about his injury and the Board 

led him to believe it was not necessary to file a claim. 
Tn the instant case, claimant was never misled by anyone 

connected with the Board or the insurer. The undisputed evidence 

shows there was never any communication between the claimant and 

anyone representing the insurer. 

Claimant's condition was fully diagnosed by Dr. Kelly within 

one year of the accident, and claimant knew of his condition. 

A review of the medical evidence shows the doctor's diagnosis 

has not changed and claimant's condition has not worsened. In 

other words, the claimant knew, within one year, the full extent 

of his injury. 

The only affirmative act the insurance carrier took in this 

matter after the accident was to pay for medical expense incurred 

by the claimant. 

Before the Board and the district court, claimant relied 

heavily on Gugler v. Industrial Accident Board, 117 Mont. 38, 

157 P.2d 89. Although the facts substantiating an estoppel or 

waiver were present in Gugler, the Court based its decision upon 

a theory that the filing of a claim by a doctor for his services 

was the equivalent of the filing of a claim by the injured workman, which dispensed with the necessity of any further claim by 

the workman. 

In its haste to abrogate the theory of Gugler, the legislature 

amended the Workmen's Compensation Act to provide that medical 

benefits were "an additional benefit separate and apart from 

compensationf', but neglected to have the legislative bill printed. 

By reason of this, the Court in O'Bannon v. Gustafson, 130 Mont. 

402, 303 P.2d 938, held the amendment unconstitutional. In O'Bannon it was recognized that the 1945 legislative amendment would -9 

have chznged the Gugler rule had the amendment been constitutional. 

The pertinent sections have since been reenacted and recodified 

numerous times, so the constitutional defect of ~'Bannon no longer 

exists. It is now clear that medical benefits are an additional 

benefit separate and apart from compensation. No claim for medical 

benefits need be made and the medical benefits will be paid during 

the first thirty-six months after the accident. 

In Vetsch v. Helena Transfer & Storage Co., 154 Mont. 106, 

460 P.2d 757, the issue was raised as to whether payment of medical 
claims would toll the statute of limitations set forth in section 

92-601, R.C.M. 1947. The Court held that estoppel was inapplicable, 

thereby affirming the rule that payment of medical bills does 

not dispense with the necessity of a claim for compensation by 

an injured workman. 

In reversing the ruling of the Board in the instant case, 

the district court partially based its decision on the failure 

of Argonaut's agent, George Wood, to follow his own ordinary 

internal office procedure. The court decided in effect, that 

Argonaut had a duty to obtain a claim for compensation from the 

claimant. This is directly contrary to the plain, simple, unambiguous language of section 92-601, R.C.M. 1947: 

"* * * all cladms shall be forever barred unless 

 resented in writinn * * within twelve months 

Thus, the duty is upon the claimant to file his claim, not 

upon the insurer to solicit claims. The Workmen's Compensation 

Act has not changed the principle that he who asserts a right has 

the burden of proof or the burden of proceeding. In Nicholson 

v. Roundup Coal Mining Co., 79 Mont. 358, 374, 257 P. 270, the 

Court said: 

1' The burden is therefore upon the claimant to prove 

injury, as above defined, resulting from (1) an industrial accident, (2) arising out of and (3) in the 

course of the employment, and, as these terms are used 

conjunctively and not disjunctively in the statute, 

unless all three of these necessary elements are proved 

by a preponderance of the evidence, no liability rests 

upon the employer to pay compensation. [Citing cases]. II 

Other cases holding that the burden of establishing a right 

to compensation is the claimant's are: Landeen v. Toole County 

Refining Co., 85 Mont. 41, 277 P. 615; Woin v. Anaconda Copper 

Min. Co., 99 Mont. 163, 43 P.2d 663. 

In - Yurkovich which was a plan I11 case, the Court did hold 

that the Board had a duty to fully advise an injured workman of 

the claim filing requirements. But in Yurkovich the claimant 

wrote to the Board asking for information as to what he should do. 
In the instant case there is no such request from the claimant. 

There was no communication whatsoever between claimant and the 

insurer or the Board. In fact, claimant was represented by counsel 

who surely should have known of the claim filing requirements. 

The facts of the instant case are certainly distinguishable from 

Yurkovich. In addition, Yurkovich was decided on the theory that 

the Board was a trustee of the state fund, that it acted in a dual 

capacity and, therefore,had a greater duty toward claimants. 

Defendant Argonaut is not in the same position as the Board. 

As pointed out, the district court partially based its ruling 

on what it felt was the failure of George Wood to follow his own 

internal office procedure. In its findings of fact of April 5, 1971, 

the district court found that Wood did not file until 1970 a 

medical report with the Board which he had received in 1966 from 

Dr. Vadheim. This is immaterial to any issue of estoppel. There 

is no proof claimant had any knowledge that the report was not 

sent. Thus it was impossible for the claimant to have been prejudiced or misled. Even if the report had been sent, it is impossible to see how this would have affected the situation in any 

way. 

In its findings of fact of April 5, 1971, the district court 

found that under Wood's "standard procedure" if a doctor's report 

indicated a claimant would be disabled, a letter would be sent 

advising the claimant to file a claim within one year. There is 

no legal requirement that the carrier must send such a letter. The 

burden is on the claimant to file a claim, - not on the insurer to 

solicit claims. 

At the first hearing, claimant attempted to make something 

of the fact that his former counsel was the same as the employer's 

counsel. However, as pointed out heretofore, any contention of 

estoppel in this respect was abandoned until after this Court's 

order of February 7, 1972. At the first hearing, claimant's attorney stated: 
"m, ITELLCOME: Yes, let me make this clear for the 

record, for the ~oard's record. We are not contending 

that there was any overt misleading by anyone, either 

Teslow or any representative of Teslow. II 

After hearing additional testimony on May 19, 1972, the 

hearings officer observed: 

"At the time the claimant engaged Bolinger to represent his legal interests in connection with the accident, he, Bolinger, became an agent of the claimant 

while at the same time he was an agent for Teslow 

Consolidated. (Section 2-101, R.C.M. 1947) 

"The interests of the two principals were parallel 

and the same in the pursuit of the action for damages, 

while at the same time the interests of the two principals could have been in conflict in the pursuit of any 

action relative to a workman's Compensation Claim. 

"A review of the evidence in the file and the testimony at the hearings fails to disclose any indication 

that this possible conflict had any influence whatsoever 

on ~olinger's failure to file a Claim for Compensation 

on behalf of his client and principal. He mistakenly 

believed that the claimant was not entitled to compensation payments and apparently gave no thought to possible future complications that may arise. I I 

If Mr. Bolinger made a mistake in his understanding of the 

law at the time or in dismissing a possible compensation claim 

as not worth the effort, such mistake is attributable to claimant 

and acts as a bar to any assertion of an equitable estoppel by 

claimant. Section 2-209, R. C.M. 1947, states : 

''ik * * a principal is responsible to third persons 

for the negligence of his agent in the transaction 

of the business of the agency, including wrongful 

acts committed by such agent in and as a part of the 

transaction of such business, and for his willful 

omission to fulfill the obligations of the principal. 11 

Tn the instant case, claimant is the principal, Bolinger is the 

agent, and the employer and Argonaut Insurance Co. are the third 

persons. 

This Court stated the essential elements of equitable estoppel 

in Lindblom v. ~mployers' Etc. Assur.Corp., 88 Mont. 488, 494, 295 

"Generally speaking, the following are the essential 

elements which must enter into and form a part of an 

equitable estoppel in all of its applications: '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. I II 

(Emphasis added) 

Thus, it is essential to establish an equitable estoppel 

that the party sought to be estopped have knowledge that he is 

misleading the claimant and an intention to mislead the claimant 

to his detriment. Here, Mr. Bolinger testified that at the time 

he talked to the claimant he had a mistaken impression of the law. 

He did not know that he was mistaken and he had no intention of 

misleading the claimant. Therefore, an equitable estoppel has not 

been established. 

Before the Board, claimant relied on the case of Levo v. 

Gene-Shea-Morrison, 128 Mont. 570, 280 P.2d 1086. However, Levo 

is clearly distinguishable in that there a "company" attorney gave 

advice to the claimant; he was not an agent of the claimant as 

Bolinger was in the instant case. 

The Board was correct in ruling that claimant was not entitled 

to compensation because no timely claim for compensation had been 

filed. The district court erred in reversing that decision. 

Accordingly, we reverse and order the case dismissed. 

/Chief Justice 
Mr. Justice Gene B. Daly dissenting: 

I respectfully dissent to the view of the majority. 

Simply, stated, the doctrine of equitable estoppel, as applied 

to the Montana workmen's Compensation Act, creates an exception to 

the one year statute of limitations stated in section 92-601, R.C.M. 

1947, if the claimant is misled or otherwise prevented from filing 

his claim by (1) the employer or its agent (McCoy v. Mike Horse 

Mining Co., 126 Mont. 435, 252 P.2d 1036 [company doctor]; Levo 

v. Gene-Shea-Morrison, 128 lont. 570, 280 P.2d 1086 [company lawyer 

and company personnel manager& (2) the insurer or its agent 

(Lindblom v. ~mployer's Etc. Assur. Corp. 88 Mont. 488, 295 P@ 

1007 [insurance company agent]); or (3) the Industrial Accident 

Board or its agent (~urkovich v. Industrial Accident Board, 132 

Mont. 77, 314 P.2d 866 [agent of the board]]. 

The testimony of Mr. Bolinger, in hearing before the Board, 

quoted in the majority opinion, demonstrates that claimant Ricks 

relied upon Mr. Bolinger to resolve his industrial accident case. 

The following additional testimony by Mr. Bolinger in the hearing 

before the Board demonstrates the misrepresentation made to Ricks: 

"Q. Did Mr. Ricks ask you to file a claim. 

"A. I wouldn't think he asked me to file a claim. I 

don't think he would have known whether he should or 

not. The thing was discussed, but when he filed a 

claim I don't think he said that. He didn't have another attorney, and I was the one that knew the facts 

about his case. I did discuss workmen's compensation 

to the extent of whether or not he wasn't relying on 

anybody else as far as a claim was concerned, and 

actually I thought---I was under the impression, unless 

you were off 2 weeks, it wasn't worth filing a claim. 

That's the recollection I have about it. 

"Q. You think you may have advised him that it was 

hardly worth fooling with? 

"A. Yes. I I 

The quotation in the ma j ority opinion from Lindblom enumerating 

the essential elements of equitable estoppel is misleading because of 

the omission of the remaining five sentences in the quoted paragraph. They are: 
"'It will be seen that fraud is not given as an 

essential requisite in the foregoing statement. 

It is not absolutely necessary that the conduct 

- mentioned in the first subdivision be donewith 

a fraudulent purpose or intent, or with an actual 

and fraudulent intention of deceiving the other 

party; nor is this meaning implied by any of the 

language which I have used, The adoption of such 

an element as always essential would at once strike 

out some of the most familiar and best established 

instances of equitable estoppel. Undoubtedly a 

fraudulent design to mislead is often present as an 

ingredient of the conduct working an estoppel; but 

this only renders the result more clearly just, and, 

if I may use the expression, more conclusive. I 

(2 ~omeroy's Eq.Jur., 4th ed. 1644.) This language 

does not conflict in any way with what was said by 

this court in Waddell v. School District, supra. 1 I 

(Emphasis added) 

The district court, in its disposition of this case, recognized 

the advice given to Ricks by the attorney representing both Ricks 

and Teslow concerning his workmen's compensation claim was a 

misrepresentation of material legal facts. It does not appear 

that this misrepresentation was made intentionally nor fraudulently, 

but that is not a necessary component for the application of the 

equitable estoppel principle. Ricks did not know the true facts 

of the law concerning his claim, and he reasonably and predictably 

relied on the misrepresentation made to him, to his substantial 

detriment. The attorney-client relationship existent between the 

attorney and the defendants herein, at the time the misrepresentation was made, precludes them from taking advantage of the consequences of that misrepresentation. 

This Court in its application of the law of estoppel in 

Levo v. Gen.-Shea-Morrison, 128 Mont. 570, 576, 280 P.2d 1086, 

stated: 

"The doctrine of equitable estoppel is a flexible one, 

founded in equity and good conscience; its object is to 

prevent a party from taking an unconscionable advantage 

of his own wrong while asserting his strict legal right. 

Seemingly the only strict legal right we are asked to 

adhere to is the statute which was passed solely for the 

benefit of the employer and the insurance carrier, i.e. 

Statute of Limitations. * * * 

"Certainly, if there is any circumstance wherein the 

doctrine of equitable estoppel should be extended, it is 

in matters concerning an injured workman, where the law 

itself says that the Workmen's Compensation Act shall be 

cons trued liberally. " 
This Court in Newman v. Kamp, 140 Mont. 487, 490, 374 P.2d 

100, stated: 

"In light of the foregoing findings of fact, we 

must keep in mind the following well-established 

rules concerning scope of review. TJe have held that 

this court will not reverse the finding of the district court except where the evidence clearly preponderates against it. [Citing cases] Similarly, we 

stated in Rirnie v. United States Gypsum Co., 134 

Mont. 39, 44, 328 P.2d 133 (1958), that our duty is 

to determine whether there is any substantial evidence 

in the record to justify the conclusion of the court. 11 

I find the decision of the district court to be supported 

by ample and substantial evidence and I would affirm the judgment