NO. 83-61 IN THE SUPREPU COURTOF THE STATE OF MONTANA 1983

JERRY BOWERMAN, Claimant andAppellant,

-vsEMPLOYMENT SECURITY COMMISSION,Employer, and STATE COMPENSATION INSURANCEFUND, Defendantand Respondent.

APPEAL FROM: Workers' Compensation Court,The Honorable Timothy Reardon, Judgepresiding.

COUNSEL OF RECORD: ForAppellant: Utick,Grosfield & Uda;Norman Grosfield argued, Helena,Montana

For Respondent: Wm. Bailey Dunn argued,Helena,Montana

Submitted: September 16, 1983 Decided: December 22, 1983

ClerkMr. Justice John C. Sheehy delivered the Opinion of the Court.

The single issuepresented in this appeal.iswhether the statute limitations for instituting Workers

### ' Compensation claim is tolled in the case of a latent injury during the period that the injurywas unknown or unsuspected by the claimant. We hold that the statute of limitations is tolled during thatperiod. This is an appeal by the claimant Jerry Fowerman from a decision of the Workers' Compensation Court that his claim for compensation is ba-rredby section 39-71.-60l,MCA (1981). That statuteprovides: "(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 12months from the date of the happening of the accident, either by the claimant or someone legally authorized to act forhim onhis behalf. 

### "(2) The division may, upon a reasonable showing by the claimant of lack of knowledgeof 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 inWilliamsv. Wel-lman-PowerGas, 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 incidenttohis 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 itwas not necessary as he was only "shakenup." In late 1976,claimantbegan experiencingheadaches. On January 7, 1977,he sought treatment from an optometristwho diagnosed his problem asmyopic 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 samedoctor treated claimant again in 1979. About March 1980, claimant's condition worsened to the point thathe concluded thathis back pain and headacheswere not going to disappear on their own. His employer was informed thathis ability toperform on the jobwas impaired. On May 25, 1981-,Bowerman terminated his employment for the sole reason of his health condition. Coworkersand witnesses testified that Bowerman did not display symptoms of physical difficulties until late sprinq 1980. On December 15, 1980, Bowerman submitted a claim forWorkers' Compensation coverage to the State Compensation Insurance Fund because of his disablingphysical condition. The case was referred to a hearing examiner for the Division ofWorkers' Compensationwho ruled that the claimant

wasprecluded from having his claim considered because it was submitted more than three years after the time of the accident. Thehearing examiner reasoned that the decision asto whether the latent injury conceptwas 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 courtdetermined that the claimhad been filed too lateunder 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 forWorkers' Compensation claims should not run until the claimanthas been reasonably apprised of the seriousness and compensablecharacter ofhis 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 insuperableobstacle 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-egislatureshould nothe taken to indicate an intentby the legislature to preclude any other application of the latent injury rule. Respondent contends that the language of section 39-71-601, isplain and that there is an absoluteprohibition of all claims after a maximum of three years. Respondent also contends that by enacting an "accident" statute, the legislaturecarefully chose to limit actions from thedate of the accident rather than from the manifestation of the injuryand that the 1973 amendment to section 39-71-601 in enacting subsection (2) is a specific and exclusive codification by the legislatureof the latent injuryprinciple. We have held that section 39-71-601., MCA, does not exclude all late-filed.claims. 

### In Frostv. 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.dthat the statutoryperiod could be tolled for equitable reasons where the injured worker was paid by his employer sums equivalent toWorkers1Compensation benefits which in effect lulled the injured worker into failure to timely file forWorkers' 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 fornotice of claim tobe tolled until the claimant as

a reasonableman should recognize the nature, seriousnessand 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 onlywhen he inexcusablydelays assertionof 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 yetmatured; and when it matures, it is already barred.. 

# . ." Larson, supra,S 78.4?(S), at 15-225. In Johnson v. St. Patri.cklsHospital (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 amedical.malpractice case that where a foreign object is neglj-gentlyleft in a patient's body andthe 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 reasonablecareand 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 legislaturewas acting only with respect to latent injuries unsuspected by the claimant. The language of subsection (2) is broad and could encompass any number of situationswhere 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.tionswhere the nec~ligenceof 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 theWorkers' 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 notbegin to run until the claimant, as a reasonableman, 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 notbe considered a bar to Bowerman's claim. The Workers' Compensation Court did not decide in this

case whether Bowerman in fact su.staineda 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-imitationsquestion. \filelikewise express no opinion as to the compensahilityof Bowerman's injury.

We Concur: 

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# JM Chief Justice



### CAB- 

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JusticesThe Hon. DianeG. Barz, DistrictJuZge,dissenting:

Irespectfully dissent from themajority opinion because I believe the resultreached 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 accidentwas 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 requirementup 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 caseswhere a claimantwas 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 topresent 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 unlimitedperiod of time. Such a result is inconsistent with the plain meaning of the statute. I have no quarrel with the assertion that the Workers' CompensationAct 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--liberalor 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 legislaturehas spoken to the issue, and this Court should not auestion its wisdom in so doing. Accordingly, Iwould affirm the decision of theWorkers' Compensation Court.

Hoh. Diane G. Barz, District Judge, sitting for \ Mr. JusticeFrank B. Morrison 

# , I 1 join in the foregoing dissent of Judge dz:

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