NO. 83-61 

IN THE SUPREPU COURT OF THE STATE OF MONTANA 

1983 

JERRY BOWERMAN, 

Claimant and Appellant, 

-vsEMPLOYMENT SECURITY COMMISSION, Employer, 

and 

STATE COMPENSATION INSURANCE FUND, 

Defendant and Respondent. 

APPEAL FROM: Workers' Compensation Court, The Honorable Timothy 

Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Utick, Grosfield & Uda; Norman Grosfield argued, 

Helena, Montana 

For Respondent: 

Wm. Bailey Dunn argued, Helena, Montana 

Submitted: September 16, 1983 

Decided: December 22, 1983 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

The single issue presented in this appeal. is whether the 

statute limitations for instituting Workers ' 

Compensation claim is tolled in the case of a latent injury 

during the period that the injury was unknown or unsuspected 

by the claimant. We hold that the statute of limitations is 

tolled during that period. 

This is an appeal by the claimant Jerry Fowerman from a 

decision of the Workers' Compensation Court that his claim 

for compensation is ba-rred by section 39-71.-60l, MCA (1981). 

That statute provides: 

"(1) In cases 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 on 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. " 

Subparagraph (2) of section 39-71-601, was added by the 

legislature in 1973 (5 1, Ch. 264, Laws of 1973). This 

Court, in dicta, in Williams v. Wellman-Power Gas, Inc. 

(1977), 174 Mont. 387, 389-390, 571 P.2d 90, 92, stated that 

the purpose of the 1973 amendment was to solve the latent 

injury problem by granting the Division the authority to 

extend the time period. on a reasonable showing of lack of 

knowledge of disability. The employer and the insurer in 

this case rely on language of the 1973 enactment and the 

dicta in Williams v. Wel-lman-Power Gas, Inc. as an indication 

that the legislature has acted with respect to latent 

iniuries and the courts should permit no further extensions. 
In the facts reported to us in this case, the claimant 

Bowerman suffered an industrial injury arising out of and in 

the course of his employment in 1976 when he fell into a 

stairwell after stepping on a pencil. He immediately 

reported the incident to his supervisor, who recommended that 

Bowerman file a report. However, Bowerman did not file a 

claim or report at the time of the accident because he felt 

it was not necessary as he was only "shaken up." 

In late 1976, claimant began experiencing headaches. On 

January 7, 1977, he sought treatment from an optometrist who 

diagnosed his problem as myopic astigmatism, unrelated to the 

1976 injury. In December 1977, he sought treatment for 

shoulder pain and headaches from an orthopedic surgeon who 

diagnosed cuff tendonitis. The same doctor treated claimant 

again in 1979. 

About March 1980, claimant's condition worsened to the 

point that he concluded that his back pain and headaches were 

not going to disappear on their own. His employer was 

informed that his ability to perform on the job was impaired. 

On May 25, 1981-, Bowerman terminated his employment for the 

sole reason of his health condition. Coworkers and witnesses 

testified that Bowerman did not display symptoms of physical 

difficulties until late sprinq 1980. On December 15, 1980, 

Bowerman submitted a claim for Workers' Compensation coverage 

to the State Compensation Insurance Fund because of his 

disabling physical condition. 

The case was referred to a hearing examiner for the 

Division of Workers' Compensation who ruled that the claimant 

was precluded from having his claim considered because it was 

submitted more than three years after the time of the 

accident. The hearing examiner reasoned that the decision as 
to whether the latent injury concept was an exception to the 

three year maximum time limit under section 39-71-601, MCA, 

properly rested with this Court. 

Bowerman excepted to the decision of the hearing 

officer . On April 20, 1982, the administrator of the 

Division issued his order of determination sustaining the 

findings and conclusion of the hearing officer. Thereafter 

Bowerman appealed to the Workers' Compensation Court. That 

court determined that the claim had been filed too late under 

the applicable statute of limitations. It is from the 

decision of the Workers' Compensation Court that the matter 

comes on appeal to this Court. 

In general, Bowerman's contentions are that the time 

period for Workers' Compensation claims should not run until 

the claimant has been reasonably apprised of the seriousness 

and compensable character of his injury. He further contends 

that although section 39-71-601, MCA, is an "accident" type 

of statute in that the clock. runs from the time of the 

accident rather than the time of the injury, this is not an 

insuperable obstacle to judicial achievement of a more humane 

rule under libera,- construction. Bowerman also argues that 

the addition of subsection (2) to section 39-71-601, MCA, by 

the 1-egislature should not he taken to indicate an intent by 

the legislature to preclude any other application of the 

latent in jury rule. 

Respondent contends that the language of section 

39-71-601, is plain and that there is an absolute prohibition 

of all claims after a maximum of three years. Respondent 

also contends that by enacting an "accident" statute, the 

legislature carefully chose to limit actions from the date of 

the accident rather than from the manifestation of the injury 
and that the 1973 amendment to section 39-71-601 in enacting 

subsection (2) is a specific and exclusive codification by 

the legislature of the latent injury principle. 

We have held that section 39-71-601., MCA, does not 

exclude all late-filed. claims. In Frost v. Anaconda Company 

(Mont. 1982), 645 P.2d 419, 39 St.Rep. 879, and in Jaeger v. 

Stauffer Chemical Company (Mont. 1982), 645 P.2d. 942, 39 

St.Rep. 919, it was he1.d that the statutory period could be 

tolled for equitable reasons where the injured worker was 

paid by his employer sums equivalent to Workers1 Compensation 

benefits which in effect lulled the injured worker into 

failure to timely file for Workers' Compensation. 

The Workers' Compensation Court noted that in 3 Larson, 

Workmen's Compensation Law, SS 78.40, at 15-155, et seq. 

(1983) , the author argues for an interpretation of the time 

period for notice of claim to be tolled until the claimant as 

a reasonable man should recognize the nature, seriousness and 

probable, compensable character of his injury or disease. 

Larson says: 

"It is odd indeed to find, in a supposedly 

beneficent piece of legislation, the survival of 

this fragment of irrational cruelty surpassing the 

most technical forfeitures of legal statutes of 

limitation. Statutes of limitation generally 

proceed on the theory that a man forfeits his 

rights only when he inexcusably delays assertion of 

them, and any number of excuses will toll the 

running of the period. But here no amount of 

vigilance is of any help. The limitations period 

runs against a claim that has not yet matured; and 

when it matures, it is already barred.. . ." 

Larson, supra, S 78.4?(S), at 15-225. 

In Johnson v. St. Patri.ckls Hospital (1966), 148 Mont. 

1-25, 417 P.2d 469, this Court by judicial decision did not 

follow the literal language of the statute of limitations, 

but adopted the rule in a medical. malpractice case that where 

a foreign object is neglj-gently left in a patient's body and 
the pa.tient is ignorant of the fact, his time for filing 

action does not begin until the patient learns of or in the 

exercise of reasonable care and diligence should have learned 

of the presence of the foreign object in his body. In that 

case the dissenting justice contended that it was a matter 

for the legislature to determine. The legislature did in 

fact subsequently enact such a provision in 1971 (section 

27-2-205, MCA) . 

It is not exclusively evident that in enacting 

subsection (2) of section 39-71.-601, MCA, the legislature was 

acting only with respect to latent injuries unsuspected by 

the claimant. The language of subsection (2) is broad and 

could encompass any number of situations where in equity the 

Division would be moved to extend the time for filing the 

notice of claim up to the 24 months provided. We would 

prefer a specific enactment by the legislature of a statute 

of limitations relating to latent injury claims. The course 

taken by this Court in medical malpractice claims in Johnson 

v. St. Patrick's Hospital, supra, had the effect of prodding 

the legislature into providing expressly for an extended 

period of 1imi.ta.tions where the nec~ligence of the treating 

physician or hospital was not discovered by the patient 

within the time allowed by the applicable statute of 

limitations. The logic expressed by Larson in his position 

that latent injuries should not be barred by the statute of 

limitations until the statutory period has run from the time 

of dscovery is unassailable, and appeals to this Court whose 

duty is to interpret liberally the provisions of the Workers' 

Compensation Act. We therefore determine that section 

39-71-601, MCA, should be interpreted, in cases of latent 

injury, so 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. 

Accordingly, the decision of the Workers' Compensation 

Court is reversed and this cause is remanded to the Workers' 

Compensation Court for further proceedings, either before the 

Court or Division, except that section 39-71-601, MCA, shall 

not be considered a bar to Bowerman's claim. 

The Workers' Compensation Court did not decide in this 

case whether Bowerman in fact su.stained a compensable cla.im. 

It was not necessary for the Workers' Compensation Court to 

reach that decision because of its interpretation of the 

statute of 1-imitations question. \file likewise express no 

opinion as to the compensahility of Bowerman's injury. 

We Concur: 

?i-d 

Chief Justice 

JM 

CAB- a%--%?-- 

Justices 
The Hon. Diane G. Barz, District JuZge, dissenting: 

I respectfully dissent from the majority opinion because 

I believe the result reached therein is contrary to the clear 

legislative enactment. Prior to 1973, any claim not 

presented within twelve months from the date of the happening 

of the accident was barred. In 1973, the legislature enacted 

subsection (2) as follows: "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 1973 emendment strongly suggests that the 

legislature was attempting to deal with the latent-injury 

problem. Recognizing that subsection (1) made no allowance 

in cases where a claimant was unaware that he had suffered a 

disability, the legislature, by the enactment of subsection 

(2), specified that a claimant who lacked knowledge of his 

disability could he granted an a2ditional 24 months in which 

to present a claim. 

As a consequence of the maiority' s holding, subsection 

(2) is rendered meaningless. Forthwith, the Division may, 

upon a reasonable showing by the claimant of lack of 

knowledge of disability, waive the time requirement for an 

unlimited period of time. Such a result is inconsistent with 

the plain meaning of the statute. 

I have no quarrel with the assertion that the Workers' 

Compensation Act is to be liberally construed in favor of the 

injured worker. However, the majority's construction runs 

contrary to the express limitation of the statute. 

The restraint exercised. by the Supreme Court of our 

sister state, Wyoming, in the face of an undesirable result, 
is noteworthy in that it reminds us that our function as 

jurists is to interpret, and not to enact. In State ex rel. 

Director, Workers ' Compensation Division v. Wyo-Dak (Wyo. 

1979), 589 P.2d 835, an injured worker's claim was denied 

because the filing time had expired, even though the 

disability was of a type that he could have no knowledge of 

until after the statute of limitations had run. Justice 

Rose, specially con-curring, observed: "I agree with the 

result and reasoning of this decision, but I feel compel-led 

to emphasize that I do so because I am not permitted, under 

the pretense of statutory interpretation, to rewrite a clear 

legislative enactment." Wyo-Dak, 589 P.2d a.t 839. Recause 

the statute was clear in meaning, the Court could not apply 

rules of construction--liberal or otherwise. 

The legislation. dealt with by the Wyoming Court in 

Wyo-Dak was recognized as being particularly unfair, and the 

sane recognition might be made of our own statute, which 

permits waiver of the time limit only up to an additional 24 

months. Regardless, the legislature has spoken to the issue, 

and this Court should not auestion its wisdom in so doing. 

Accordingly, I would affirm the decision of the Workers' 

Compensation Court. 

Hoh. Diane G. Barz, 

District Judge, sitting for \ 

Mr. Justice Frank B. Morrison , 

I 

1 join in the foregoing dissent of Judge dz: . .-1 

i