No. 87-258

INTHE SUPREME COURTOF THE STATEOF MONTANA
1988

FRANKWEIGAND, Claimant and Respondent,

-vsANDERSON-MEYER DRILLING CO., Employer,
and HOME INSURANCE COMPANY, DefendantsandAppellants.

APPEAL FROM: Workers' Compensation Court of the State ofMontana Inand For theArea of Great Falls TheHonorableTimothy Reardon,Judge Presiding
COUNSEL OF RECORD:
ForAppellant: David E. Bauer; Marra,Wenz,Johnson & Hopkins,P.C. Great Falls,Montana
For Respondent: Donald 

### R. Marble;Marble & Seidlitz, Chester,Montana

Submitted onBriefs: February 4, 1988 Decided: June 21, 1988

ClerkMr. Justice John C. Sheehy delivered the Opinion of the Court. Defendants Anderson-Meyer Drilling Company and Home Insurance Company appeal from the judgment of the Workers' Compensation Court. The Workers' Compensation Court held that Frank Weigand is not barred from compensation by the statute of limitations provision, 5 39-71-601(1)

## ,MCA. The court further held that the Weigand's present condition is the result of a previous compensable injury and thus the defendantsare liable. We affirm. The defendants present two issues on appeal. They are:

(1) Whether the Workers' Compensation Court erred in finding that Weigand satisfied the filing requirements of 5 39-71-601(1)

## ,MCA; and, (2) Whether there was sufficient evidence to support the Workers' Compensation Court's conclusion that Weigand's present condition is the result of his February 11, 1982, injury. On February 11, 1982, Frank Weigand injured his left knee when he slipped on ice and hit his knee cap on the angle iron steps of the defendant's oil rig. It is uncontested that Weigand suffered an industrial accident arising out of and in the course of his employment with Anderson-Meyer Drilling Company. Anderson-Meyer was enrolled under Plan I1 of the Worker's CompensationAct with Home Insurance Company being its insurer. Weigand immediately informed his supervisor of the injury but was able to finish his shift. Weigand had his knee examined at Trinity Hospital inWolf Point. The examination revealed an injury to the lateral cartilage of the left knee requiring surgery. The operative report revealed that Weigand had an "extremely degenerative (shredded) left lateral meniscus" which was removed during surgery.Following a brief stay in the hospital Weigand was released and immediately returned towork. Subsequent to the accident Weigand assisted the defendant/employer in completing a Employers First Report, which was filed with Home Insurance. The attending surgeon also filed the attending Physician's First Report with the insureraswell ashis bill for $839.69. Trinity Hospital in Wolf Point submitted a bill to the insurer for Weigand's surgery in the amountof $2,260.15. These billswerepaid by the insurer along with some smaller additional charges and

arenot an issue in the case. Weigand's work history subsequent to his 1982 injury consists of oil field jobs and ranchwork. While working on his father's ranch during the summer of 1985 Weigand began experiencing increasing pain in his knee. Weigand's painwas not due to a new injury or accident but appeared to be the result of everyday wear and tear on the previously injured knee. InAugust, 1985,Weigand had his knee examined by Dr. James Hinde. Hinde found that Weigand had a degenerative left knee. Hinde felt although therewas some deterioration prior to the 1982 injury, the condition was significantly aggravated by the fall and resulting surgery. Hinde further found that the 1982 injury and the subsequent surgery are significant factors in the continued degeneration of Weigand'sknee. Hinde concluded that itwas his opinion that Weigand's degenerative knee condition would preclude him from engaging inany ofhis former occupations. Although the insurer had sent Weigand at least two letters instructing him to complete a form 

### 54 immediately following the accident,he failed to do so. (Form

### 54 is the standard claim form utilized by insurers). However,Weigand did file a form 54 compensation claim inMarch, 1986.The defendant denied Weigandlsclaim for compensation contending that Weigand did not file a claim within one year

as required by 39-71-601, MCA. The defendant further alleged that Weigandls present difficulties were not the result of his 1982 injury. On June 10, 1986, the Worker's Compensation Court held a hearing on the matter. The court concluded that the requirementsof § 39-71-601,MCA, had been satisfied and that Weigand's current condition is the result of his injury in 1982. From this judgment the defendants appeal. The first issue that must be examined is whether the Workers' Compensation Court erred in finding that Weigand satisfied the filing requirements of S 39-71-601(I), MCA. When reviewing questions of law in workers' compensation cases, the standard of review is whether the lower court's interpretation of the law is correct. Poppletonv. ~ollins, Inc. (Mont. 1987), 735 P.2d 286, 288, 44 St.Rep. 644, 646. We conclude that the Workers' Compensation Court correctly interpreted the law. In the immediate case it is uncontested that Weigand was injured in an industrial accident in February, 1982,and that he failed to file a form 54 within one year. Weigand did, however, assist in preparing the Employer's First Report. Thus, the issue before the Court is whether submission of a form 54 is the exclusivemethod of filing a claim. The focal point of the controversy is 

### 5 39-71-601,MCA. Itprovides: Statute waiver. all claiof limitation on presentment of claim 

## -- -

(1) In case oFpersonal injuryor death, .msshallbe forever barred unlesspresented in writing to the employer, the insurer, or the division, as the casemay 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 inhis behalf.In Scott v. Utility Line Contractors (Mont. 1987), 734 P.2d 206, 44 St.Rep. 547, this Court had an opportunity to construe $ 39-71-601,MCA, under very similar circumstances. In Scott, as in the present case,the claimantwas injured in 1982 and sought to file a compensation claim in 1986. The claimant in Scott also did not file the standard workers' compensation claim form (form54) for his injury,nor did he sign the Employer's First Report. However, there was a completedEmployer's FirstReport submitted to the insurer as well as a medical report which was also submitted to the insurer. This Court affirmed the decision of the Workers' Compensation Court finding Scott presented his claim within

one year, thus satisfying $ 39-71-601, MCA. We held the Employer's First Report contained ample informationto clearly inform the employer and the division of the nature and basis ofMr. Scott'spossible claim. Scott, 734 P.2d at 208, 44 St.Rep at 547. This Court further stated the medical report included indications that a claim could likely result from Scott's injury. Scott, supra. In the present case Weigand immediately told his supervisor of the accident. FJeigand assisted the employer in completing the Employer's First Report,which was submitted to the insurer within two months of the accident. The attending physician's first report was also submitted to the insurerwellwithin the twelve-monthperiod. In this case as in Scott, the defendantwas provided with and received ample information to be informed of the nature and the basis of Weigand's possible claim. We find that the mandate of $ 39-71-601(1),MCA, has been satisfied. This issue is controlled by the holding in Scott. The facts are nearly identical except as to the time involved. The earlier case ofKleinv. Independent WholesaleAssociated Grocers,et a]. (1975),167Mont. 341, 538 P.2d 1358,was notdiscussed in Scott,and here the employer and insurer rely on Klein. The deciding point, however, is that there was presented to the employer, and through the employer to the insurer,by the assistanceofWeigand, information in writing which gave all the details that a further form to be filled out and presented by Weigand would have given. The purpose of S 39-71-601 is fulfilledhere. We determine to follow the holding in Scott, and anything contained in Klein or earlier

cases to the contrary on this set of facts is expressly overruled. Thepurpose of § 39-71-601,MCA, is to give the employer written notice of a worker's claims within twelve months of the injury or accident in order to allow the employer to investigate the claim and if necessary prepare a defense. Scott, supra. The facts of the present case clearly demonstrate that the objective of the statute has been achieved. We affirm the judgment of the Workers' Compensation Court finding that Weigand presented his claim within the time limitsexpressed inS 39-71-601,MCA. The defendants next contend the Workers' Compensation Court erred in finding that there was substantial credible evidence to support the conclusion that Weigand's current condition is the resultof his February 11, 1982,injury. We disagree. The standard for reviewing the Workers' Compensation Court's findings of fact iswhether the court's findings are supported by substantial credible evidence in the record. Poppleton, 735 P.2d at 288, 44 St.Rep. at 646. In the instant case, Dr. Hinde testified that although Weigand had a degenerative leftkneeprior to his 1982 injury the condition

was aggravated by the injury. Hinde further testified that Weigand's 1982 injury and the subsequent surgeryare significant factors in thedegenerating condition ofWeigand's knee.Our function in reviewing these decisions is only to determine whether substantial evidence exists to support the findings and conclusions and we cannot impose our judgment as to the weight of the evidence. Ridenour v. Equity Supply Co. (19831, 204 Mont. 473, 483, 665 P.2d 783, 788, citing Viets v. Sweet Grass County (1978), 178Mont. 337, 583P.2d 1070. It is clear from the evidence in the record that substantial credible evidence exists to support the Workers' CompensationCourt's finding thatWeigand'spresent condition is the result of his injury of February 11, 1982. The judgment of the Workers' Compensation Court is affi-rmed. The

case is remanded for a determinationofbenefits. //'-.--.--'\

Justice

/'

We concur: 

# /

Justices

### Mr. Justice

### L. C. Gulbrandson,dissenting.

I respectfullydissent and Iwould reverse the judgment of the Workers1Compensation Court finding that the claimant presented his claim for compensation within the time limits set forth in 

### 5 39-71-601,MCA. In my view, the majority has effectively repealed S 

### 39-71-601, MCA in those cases where an Employer's First Report has been filed,and amedical bill has been submitted and paid. Section 39-71-601 readsas follows: (1) Incase ofpersonal injury or death, all claims shallbe forever barred unless presented in writing to the employer, the insurer, or the division,as the case may be,within 12months from the date of the happening of the accident, either by the claimantor someone legally authorized to act forhim inhisbehalf.

(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. The Workers1Compensation Court Judge in Finding of FactNo. 24, found: The insurer,following the 1982accident, sentand claimant received, at least two, and probably four, letters which stated as follows:
"We have been advised you are claiming injury as the result of an accident which occurred on or about the above date. Please complete the enclosed Claim for Compensation in detail and return it immediately.
Ifyou were an employee of our insured on the date you were injured, and if your injury arose out of and in the course of your employment, you are entitled tocertain medical and disability benefits as set forthby law.
If you are disabled for more than five working days and lose wages, you are entitled to disability benefits. Even thoughyoumay not losewages as a result of this injury, you should complete the enclosed form and return to this office. Should you have problems at a later date and this form has not been filed within one year from the date of accident, all future claims for disability may be barred.

If you have any questions regarding the benefits due you, please contact this office or the Division of Workers' Compensation, Helena,Montana." The claimant did not respond to the insurer's request and failed to submit a written claim for compensationuntil March 6, 1986, more than four years after the injury. The insurer has thirty days from the receipt of the claim for compensation to accept or deny the claim. Section 39-71-606(1),MCA, reads as follows: (1) Every insurerunder any plan for the payment ofworkers' compensationbenefits shall, within 30 days of receipt of a claim for compensation, either accept or deny the claim, and if denied shall inform the claimant and the division in writing of suchdenial.

In this case,claimant's counsel took theposition originally that because the insurer had not denied the March 6, 1986 claim in writing within 30 days as required by $ 39-71-606, MCA, the insurer should be held to have accepted the claim even though the injury had occurred more than four years earlier. The majority, by dispensing with the legislated requirement of a written claim for compensation seems to be

### creating uncertainty in what should be a certain procedure. What incident now triggers the thirty day period for an insurer to accept or deny a claim for compensation? Is it the receipt of the Employer's First Report, the receipt of a medical bill by the insurer, or a claim for compensation filed many years after the injury? The majority states that Wiegand assisted the Employer in completing the Employer's First Report but that statement is not supported in the record and was not found by the court. The record shows that claimant'sbrotherwas employed

on the same drilling rig and later drove the claimant to the doctor's office in Wolf Point. It appears that sufficient informationwas provided to the employerby someone that the First Report could be submitted but this Court has always required more inprevious cases. The Workers' Compensation Court found that the completion of form 54 

### by the claimant would not have given the employer any more information than it already had and suggested that the claimant may have been confused. Claimant's work history indicates that he had previously filed a Claim for Compensation for a 1978 injury and subsequently had filed a Claim for Compensation for a 1983 injury. That claim history would indicate a certain degree of sophistication and claimant's failure to respond in any
manner to four solicitations of a claim for compensation shouldbe construed tobe avoluntary act. I 

### would defer to clearly expressed legislative intent and construe the claim requirements of S 

### 39-71-601,MCA, as written, and would reverse the judgment of the Workers' CompensationCourt. /