No, 12902 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

ABE KLEIN, 

Claimant and Respondent, 

INDEPENDENT WHOLESALE ASSOCIATED 

GROCERS, and 

STATE INSURANCE FUND, 

Defendants and Appellants. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable Robert Wilson, Judge presiding, 

Counsel of Record : 

For Appellants : 

Harris, Jackson and Utick, Helena, Montana 

Andrew J, Utick argued, Helena, Montana 

For Respondent : 

Fillner and Snyder, Billings, Montana 

Charles E. Snyder argued, Billings, Montana 

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Submitted: April 7, 1975 

,jlvi % i975 Decided : 

Filed : JiJI 8 2 - -- 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

This is an appeal from a judgment entered in the district 

court, Yellowstone County, reversing a decision of the Workmen's 

Compensation Division and entering judgment for payment of 

workmen's compensation benefits. 

After a hearing before the Workmen's Compensation Division 

(hereinafter referred to as the Division) on September 12, 1973, 

wherein claimant Abe Klein sought workmen's compensation based 

upon his claim filed with the Division some three years and seven 

months after the date of his accident, the Division found claimant 

entitled to compensation; set the award; and then denied the compensation for failure to submit his claim within the statutory 

one year period set forth in section 92-601, R.C.M. 1947. 

The district court reversed the Division's order and 

awarded compensation at the rate of 62 1/2% of the claimant's 

wage loss up to a statutory maximum of $46 per week and remanded 

the case to the Division for a determination of claimant's actual 

wage loss. 

On or about June 23, 1967, while in the employ of Independent Wholesale Associated Grocers as a mechanic, claimant suffered 

an on the job injury. The employer was insured under Plan I11 

of the Montana Workmen's Compensation Act, the insurer was the 

State Insurance Fund. Claimant has an eleventh grade education. 

His work experience is in the area of heavy duty mechanics and 

evidence at the hearing revealed claimant is now unable to do this 

type of work. 

After his injury claimant continued to work at his job 

as a mechanic, losing only two or three days of work, until his 

employment was terminated on February 28, 1970. 
The Division received at its office in Helena, four days 

following the accident, the attending physician's first report sent 

in by Dr. Gary V. Dols, a chiropractor, describing claimant's in11 jury as a lumbar sacral strain" and giving the date and details 

of the accident. Dr. Dols also sent in periodic medical reports and 

medical bills. A file number was assigned to claimant's case. 

Dr. Dols indicated claimant would lose three to five days of work 

and there would be no permanent disability. Within 30 days of 

the accident the Division also received the employer's first 

report of injury in greater detail with respect to the type of 

accident and injury and the wages earned by claimant at the time 

of the accident. 

On October 30, 1967, the Division sent this letter to 

claimant : 

"October 30, 1967 

"Re: Accident --- 8944-C-52--Abe Klein 

"Abe Klein 

1204 Hamey Drive 

Billings, Montana 

"Dear Sir: 

"Notice has been given that you have had an 

injury covered by the Workmen's Compensation Act. 

If this is true, you may protect your rights by 

using the enclosed blank to make a claim for compensation. 

"PLEASE FOLLOW THESE INSTRUCTIONS CAREFULLY. 

Write plainly with ink or typewriter. 

Give the facts with particular care to 

describe the accident itself fully. 

State exactly the days physically disabled 

and the amount of wages--in figures--lost 

for each of these days. 

Be sure to enter the birthdates (month,day, 

year) of dependent children, sign the claim 

and show your correct mailing address. 

The law provides that you must file your claim 

within ONE YEAR after the accidental injury. 

Failure to do so will bar you from receiving 

compensation. 

Under the law, you are entitled to hospital and 

medical benefits and if you lose wages, compensation 
payable every two weeks. For further information 

you may write to the Board at any time, 

I I Very truly yours, 

It /s / Margaret Condon 

Secretary. I1 

A Form 54 was enclosed, the form used by the Division for the 

employee to make a claim for compensation. 

Claimant on December 28, 1967, on the back of the letter 

sent by the Division, responded to the Division: 

11 Gentlemen: I was off work 4 days due to accident 

mentioned. If I'm applicable for Compensation 

please notify, & I will .fill out form received. 

 h hank you, 

"/s/ Abe Klein 

1204 Karney Dr. 

File #8944-C-52. 

In response to claimant's letter of December 28, 1967, 

the Division sent this correspondence to claimant: 

"January 9, 1968 

"Re: Accident 8944-C-52 - Abe Klein 

"Mr. Abe Klein 

1204 Harney Drive 

Billings, Montana 

 e ear Mr. Klein: 

I I Regarding your recent note in response to our 

mailing of a claim for Compensation for your completion 

you should be advised that was merely sent to you for 

protection in the event that you may incur later problems 

as a result of your June 23 injury. As you are aware Dr. 

Dols has referred you to Dr. Perry Berg and indicated 

in reports to us that he feels that you may have a disc 

involvement which could eventually cause disability and 

we therefore feel that you should complete this form 

at your convenience and return although no compensation 

benefits would be due at this time. 

"If you desire any further clarification in this 

regard I suggest you call our Field Representative who 

lives in Billings, Mr. Harold Winfield. I' 

The letter was signed by J. J. Carden, Claims Manager for the 

Division. 
Claimant did not fill in Form 54. He did, however, contact 

Mr. Winfield, who visited the claimant on May 14, 1968, and authorized 

a 30 day treatment period with Dr. Dols. Subsequently, on or about 

June 15, 1968, about eight days before the expiration of the claim 

filing period, Mr. Winfield again contacted claimant and gave him 

another Form 54 and explained that such form had to be filed within 

one year of the accident. He cautioned claimant that the filing 

period was about to expire; and advised claimant to file the form 

in order to protect his right to compensation in the event his condition worsened. 

On January 19, 1971, claimant filed for compensation. 

The State Insurance Fund paid medical benefits totaling $174, which 

represents all medical bills submitted on the claim which were 

incurred within three years of the accident. 

On September 12, 1973, hearing was held to determine 

claimant's right to compensation. On January 21, 1974, the 

Division adopted findings of fact and conclusions of law that 

established the claimant suffered a compensable "lumbar sacral 

strain1'; that due to his wage loss claimant was entitled to maximum 

temporary benefits of 62 112% of his wages or a statutory maximum of 

$46 per week, and permanent partial disability compensation benefits 

of 62 112% of his wage loss, or a statutory maximum of $36 per week 

under the applicable amendment in effect at the time of his accident. The Division further found that claimant failed to file a 

claim for compensation, Form 54, within the statutory period of 

one year as required by section 92-601, R.C.M. 1947. From those 

findings of fact, the Division concluded: 

"That the claimant, Abe Klein, failed to submit a 

Claim for Compensation, form #54, within the statutory 

one year period as commanded by section 92-601 and 

for this reason, his claim must be and is hereby denied. I1 

On claimant's appeal to the district court the matter 

was submitted on the transcript from the Division and no new evidence was offered. 
On September 27, 1974, the district court entered its 

findings of fact and conclusions of law, reversing the workmen's 

Compensation Division. In its conclusions of law, the district 

court said: 

"1, The letter of claimant dated December 18, 1967, 

signed by claimant and not requiring oath, presented 

the 'claim' of claimant to the division within the 

meaning of R.C.M. 1947, Section 92-418. 

"2. Even if the Division did not consider the December 

28, 1967 letter a 'claim', the division knowing the extent 

of claimant's injury, had the duty to fully advise the 

claimant and to see to it that claimant's rights were 

protected; this was particularly true when the Division 

had notified claimant that he could complete the form 

54 at his convenience and that he was not entitled to 

compensation at that time. That claimant did not understand, or was not fully advised, of the importance or 

purpose of the form 54 is obvious from the fact that 

he did not complete one. By failing to protect claimant's 

rights under the law, the Division is equitably estopped 

from later denying compensation to claimant. I 1 

The Division appeals from the district court's judgment. 

The only issue before this Court is whether or not claimant's 

letter to the Division, dated December 28, 1967, constitutes a 

claim within the meaning of section 92-601, R.C.M. 1947, before 

amendment in 1973. We find that it does not. 

Upon appeal, the presumption is that the Division decided 

the case correctly. Moffett v. Bozeman Canning Co., 95 Mont. 347, 

26 P.2d 973. The district court is justified in reversing the 

findings of the Division only where there exists a clear preponderance 

of the evidence against the ~ivision's findings. Meznarich v. 

Republic Coal Co., 101 Mont. 78, 53 P.2d 82; Beatty v. Wellman Power 

and Gas, Inc., 812792, opinion handed down July 8, 1975, Mon t . 

Section 92-601 is a notice statute which then provided: 

11 In case of personal injury or death, all claims shall 

be forever barred unless presented in writing under oath 

to the employer, the insurer, or the board as the case 

may be, within twelve 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." 
Section 92-117, R.C.M. 1947, provides that the Division 

shall print the forms necessary for the administration of the 

Workmen's Compensation Act. Rule 10 of the Rules of Procedure of the 

Division provides that every claim for compensation shall be initiated by filing of Form 54. 

The fact that claimant failed to properly complete and 

file Form 54 is not in dispute. This he failed to do after he 

was given no less than three such Form 54's and was asked by the 

Division to complete the form each time, 

Claimant argues that his lettter dated December 28, 1967, 

was sufficient notice within the requirements of section 92-601. 

With that argument this Court cannot agree. Claimant specifically 

states in his letter: 

"If I 'm applicable for Compensation, please 

notify, & I will fill out form received. 11 

Obviously, claimant did not intend his letter to be his notice for 

claim, for if he had so regarded it, he would not have made reference 

to filling out a Form 54. By stating that if he was "applicable" 

he would fill out the form received, he obviously understood the 

proper procedure to follow. 

Claimant argues the Workmen's Compensation Act must be 

interpreted liberally, citing Murphy v. Anaconda Company, 133 Mont. 

198, 321 P.2d 1094, and other cases. There is no question but that 

the Act must be liberally interpreted. We cannot, however, liberally 

construe a statute to the point of repealing it. When no effort 

was made by claimant to comply with the statute, it will not do to 

have claimant turn around and attempt to get in under the gun by 

having this Court liberally construe the statute in his favor. 

Claimant argues further that the Division is equitably 

estopped from denying his claim. We find no merit in that argument. 

The Division did everything in its power to get claimant to comply 

with the statute, short of completing the form itself, which it is 
not required to do. Claimant argues the letter from Mr. Carden 

stating claimant could complete the form at his leisure misled 

claimant into believing there was no real hurry in completing the 

form. If Mr. Carden's letter had been the only communication between claimant and the Division, tkre might be some basis to that 

argument. However, in light of the fact claimant received a notice 

from the Division explaining the year deadline, and in light of 

the fact that Mr. Winfield personally warned claimant that his time 

for filing was running out, there is just no foundation to support 

that argument. 

The judgment of the district court is reversed. 

Justice \ 

We Concur: 

6 

Hon. E. Gardner Brownlee, District 

Judge, sitting for Chief Justice James 

T. Harrison. 
Mr. Justice Gene B. ~al~ dissenting: 

I dissent, The general overriding reason for a notice 

statute, such as the one in question here, is to prevent injustice. 

That is to prevent the filing of stale or fraudulent claims far 

removed from the time of the claimed injury so as to put the 

employer or insurer in an untenable position to defend or investigate. Secondarily, there must also be rules and orderly 

procedure and finality in all matters, The result reached by 

the majority here produces a harsh and unjust result upon a 

claimant with an undisputed, honest claim which produced a severe 

disability. 

Section 92-601, R.C.M. 1947, is a notice statute which 

then provided: 

I I In case of personal injury or death, all claims 

shall be forever barred unless presented in writing 

under oath to the employer, the insurer, or the 

board, as the case may be, within twelve 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." 

The Division argues it has the right under section 92- 

117, R.C,M. 1947, to determine which forms are to be used to 

promote the efficient administration of the Workmen's Compensation 

Act. Rule 10 of the Rules of Procedure of the Division provides, in part, that "Every claim for compensation shall be iniI I tiated by filing of form 54, claim for compensation. Therefore, 

it argues, the only valid claim form is Form No. 54, claim for 

compensat,ion or a communication of similar content. 

There is no doubt the ideal situation for the Division 

would be to have every form filled out properly with the correct 

information, dated, signed, and filed on time. But realistically this can not always be done. Forms are a constant source 

of confusion. The entitlement of "Form 54" is a source of confusion in that it is titled "Claim for omp pens at ion", although 

section 92-601 requires that a claim be filled out within a year 

of the accident, before many injured persons are aware their injury 

entitles them to compensation, such as the instant case. 
FJorkmenls compensation deals with many individuals in all 

walks of life; not all are sophisticated, nor are all highly 

educated, The Montana legislature has mandated, and this Court 

has held, that the Workmen's Compensation Act must be liberally 

construed in favor of the claimant. Section 92-838, R.C.M. 1947; 

Grief v. Industrial Accident Fund, 108 Mont, 519, 526, 93 P.2d. 961; 

Murphy v. Anaconda Company, 133 Mont, 198, 321 P.2d 1094, 1097. 

Section 92-601, R.C.M. 1947, does not state that Form 54 

must be submitted to the Division. It merely requires that a claim 

in writing be made under oath. This Court in Chisholm v. Vocational School for Girls, 103 Mont. 503, 507, 64 P.2d 838, held that 

the techinical requirement of the notice to be given under oath 

is not required. Therefore, the only requirement of section 92- 

601 is that written notice be given. 

Here, claimant wrote to the Division in reply to a letter 

from the Division about his accident. He acknowledged that he 

had been injured; that he had been off work; and, if "applicable" 

for compensation he would like to be notified. The Division was 

fully aware that an accident had occurred and the details of the 

accident by virtue of the employer and medical contacts set forth 

heretofore. Yet, in answer to claimant's request for advice, 

the Division manager advised that claimant was not eligible for a 

claim at present, but that he should fill out form 54 at his 

convenience. 

The Division should have known that claimant did not fully 

understand the importance of filing form 54, because he had failed 

to do so. Under such circumstances it must act to protect claimant's 

rights by helping him complete the form, if necessary. By failing 

so to do the Division is estopped from denying claimant his claim, 

for having failed to file a particular form, 

If there was any necessary information desired by the 

Division not contained in claimant's letter, the physician's report, 

and the employer's report, all of which the Division had in its 
files, Mr. Winfield, the field agent for the Division, could have 

easily acquired it on one of his several visits with claimant. 

Winfield testified that when claims have inadequate information, 

it is customary for him to further investigate. 

This is not to say that the requirements of the Division 

or the statutes can be ignored nor that the Division must file 

the required form for claimants in all cases. In Yurkovich v. 

Industrial Accident Board, 132 Mont. 77, 314 P.2d 866, this Court 

held that it was not the duty of the Board to go out and solicit 

claims and each case must be determined on its own facts, circumstances and the law applicable. Yet, it is the duty of the Board 

to fully advise the injured workman when he comes to the Board and 

asks for information. The Court further held that this placed the 

Board in a position of trust and it was obligated to investigate 

on its own, if necessary, to determine entitlement to compensation 

by the injured workman. Failure to do so in Yurkovich resulted 

in the Court denying the Board, by estoppel, the benefit of the 

statute of limitations. 

Here, the Division argues the claimant was not misled, 

as is required to invoke equitable estoppel, and cites numerous 

cases wherein an insurance company, a doctor, a company lawyer, a 

city clerk and mayor actively misinformed the injured workman and 

estoppel resulted and would urge this factual situation as a 

condition precedent to invoking the doctrine. It recites language 

from Ricks v. Teslow Consolidated, 162 Mont. 469, 512 P.2d 1304, to 

support its position. We agree with the law as stated in Ricks . It merely restates that the doctrine will be applied if there have 

been affirmative acts which prevent the claimant from filing or lead 

him to believe he need not do so. The facts here still must control 

the result reached in the present cause. The language of Levo v. 

General-Shea-Morrison, 128 Mont. 570, 576, 280 P.2d 1086, cited to 

the Court by the Division, is particularly appropriate: 
 ̧Ÿ he 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 that 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., the 

Statute of Limitations. * J; 

"J; A J; 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 construed liberally. I I 

The judgment of the district court should be affirmed. 

- dd% --I-"---------- 

Justice. / 

Lvir. Justice Frank I. Haswell dissenting: 

I dissent and concur in the foregoing dissent 

of Mr. Justice Gene B. Daly. 

Justice.