No, 12902 INTHE SUPREME COURT OF THE STATE OF MONTANA 1975

ABE KLEIN, Claimant and Respondent,

INDEPENDENTWHOLESALE ASSOCIATED GROCERS, and STATE INSURANCE FUND, Defendants and Appellants.

Appeal from: District Court of the ThirteenthJudicial 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

- Submitted: April 

### 7, 1975

,jlvi 

### % i975 Decided : Filed: 

### JiJI82 - --

### Mr. JusticeWesley 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 theWorkmen's Compensation Division and entering judgment for payment of workmen's compensationbenefits. After a hearing before the Workmen's Compensation Division (hereinafter referred to as the Division) on September 12, 1973, wherein claimant Abe Klein soughtworkmen's compensationbased 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 claimwithin 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 compensationat 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 insurerwas 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 nowunable 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 inHelena, four days following the accident, the attending physician's firstreport sent inby 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 filenumber was assigned toclaimant's case. Dr. Dols indicated claimant would lose three to five days of work and therewould be no permanent disability. Within 30 days of the accident the Division alsoreceived the employer's first report of injury ingreater detailwith respect to the type of accident and injury and thewages earned by claimant atthe 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 theWorkmen's Compensation Act. If this 

### is true, you may protect your rights by using the enclosed blank tomake a claim forcompensation. "PLEASE FOLLOW THESE INSTRUCTIONS CAREFULLY. Write plainly with ink or typewriter.

Give the factswith particular care to describe the accident itself fully. Stateexactly the days physically disabled and the amount of wages--in figures--lost for each of these days. Be sure to enter thebirthdates (month,day, year) of dependent children, sign the claim and show your correct mailing address. The law provides that you must fileyour claim within 

### ONE YEAR after the accidental injury. Failure todo sowillbar you from receiving compensation. Under the law, you are entitled tohospital and medical benefits and ifyou losewages, compensationpayable every two weeks. For further information you may write to the Board atany time,

IIVery truly yours,

It



### /s

### / Margaret Condon Secretary.I1 A Form 54 was enclosed, the form used by the Division for the employee tomake a claim for compensation. Claimant on December 28, 1967, on theback of the letter sent by the Division, responded to the Division:

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

mentioned. If I'm applicable for Compensation please notify, & I will.fillout form received. 

### h hank you, "/s/ Abe Klein 1204 Karney Dr. File#8944-C-52. In response toclaimant's letter of December 28, 1967, the Division sent this correspondence toclaimant: "January 9, 1968 "Re: Accident 8944-C-52 

# - Abe Klein 

### "Mr. Abe Klein

1204 Harney Drive Billings, Montana 

# e ear Mr. Klein:

IIRegarding your recent note inresponse to our mailing of a claim for Compensation foryour 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 inreports tous 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 atyour convenience and return although no compensation benefits would be due atthis time. "If you desire any further clarification in this regard I suggest you call our Field Representative who lives inBillings, Mr. Harold Winfield. I' The letterwas signed by J. J. Carden, Claims Manager for the Division.Claimant did not fillinForm 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 filingperiod, Mr. Winfield again contacted claimant and gave him another Form 

### 54 and explained that such form had tobe filedwithin
one year of the accident. He cautioned claimant that the filing period was about to expire; and advised claimant to filethe form in order toprotect his right to compensation inthe event his conditionworsened. On January 19, 1971, claimant filed for compensation. The StateInsurance Fund paid medical benefits totaling $174, which represents allmedical bills submitted on the claimwhich were incurred within three years of the accident. On September 12, 1973, hearing was held todetermine claimant's right tocompensation. 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 hiswage loss claimant was entitled tomaximum temporary benefits of 62 112%of his wages or a statutorymaximum of $46 per week, and permanent partial disabilitycompensation benefits of 62 112%of hiswage loss, or a statutorymaximum of $36 per week under the applicable amendment in effect atthe time of his accident. The Division further found that claimant failed to filea claim for compensation, Form 54, within the statutory period of
one year asrequired 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 ishereby 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 itsconclusions 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 divisionwithin the meaning of R.C.M. 1947, Section 92-418. "2. Even ifthe 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; thiswas particularly truewhen the Division had notified claimant that he could complete the form 54 athis convenience and that he was not entitled to compensation atthat time. That claimant did not understand, orwas not fullyadvised, of the importance or purpose of the form 54 is obvious from the fact that he did not complete one. By failing toprotect claimant's rights under the law, the Division isequitably estopped from later denying compensation to claimant. I1 The Division appeals from the district court's judgment. The only issuebefore this Court iswhether ornot claimant's lettertothe Division, dated December 28, 1967, constitutes a claimwithin 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 

### isjustified inreversing the findings of the Division onlywhere there exists a clear preponderance of the evidence against the ~ivision's findings. Meznarich 

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

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

Section 92-601 

### is a notice statutewhich then provided:

11In case of personal injury or death, allclaims shall be forever barred unless presented inwriting under oath tothe employer, the insurer, or theboard as the case may be, within twelve months from the date of thehappening of the accident, eitherby the claimant or someone legally authorized to act forhim inhis behalf."Section 92-117, R.C.M. 1947, provides that the Division shallprint 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 shallbe initiatedby filingof Form 54. The fact that claimant failed toproperly complete and fileForm 54 isnot in dispute. This he failed todo after he
was given no less than three such Form 54's and was asked by the Division tocomplete the form each time, Claimant argues that his lettter dated December 28, 1967,
was sufficient noticewithin the requirements of section 92-601. With that argument this Court cannot agree. Claimant specifically states inhis letter: "If I'm applicable forCompensation, please notify, & I 

### willfillout form received. 11 Obviously, claimant did not intend his lettertobe hisnotice for claim, for ifhe had so regarded it, he would not have made reference to fillingout a Form 54. By stating that ifhe was "applicable" he would fillout the form received, he obviously understood the proper procedure to follow. Claimant argues theWorkmen's Compensation Act must be interpreted liberally, citingMurphy v. Anaconda Company, 133Mont. 198, 321 P.2d 1094, and other cases. There isno question but that theAct must be liberally interpreted. We cannot, however, liberally construe a statute to the point of repealing it. When no effort
was made by claimant tocomply with the statute, itwillnot do to have claimant turn around and attempt toget inunder the gun by having this Court liberallyconstrue the statute in his favor. Claimant argues further that the Division is equitably estopped from denying his claim. We findno merit in that argument. The Division did everything in 

### itspower to get claimant tocomply with the statute, short of completing the form itself, which it isnot required todo. Claimant argues the letter from 

### Mr. Carden statingclaimant could complete the form at his leisuremisled claimant intobelieving therewas no realhurry incompleting the form. If 

### Mr. Carden's letterhad been the only communication between claimant and the Division, tkremight 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 filingwas running out, there 

### isjust no foundation to support that argument. The judgment of the district court 

### isreversed.

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 toprevent injustice. That 

### is toprevent the filing of staleor fraudulent claims far removed from the time of the claimed injury so as toput the employer or insurer in an untenable position to defend or investigate. Secondarily, there must alsobe rules and orderly procedure and finality in allmatters, The result reached by the majority here produces a harsh and unjust result upon a claimant with an undisputed, honest claimwhich produced a severe disability. Section 92-601, R.C.M. 1947, 

### is a notice statutewhich then provided:

IIIn case of personal injury or death, all claims shallbe foreverbarred unless presented inwriting 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, eitherby the claimant or someone legally authorized to act for him inhisbehalf." The Division argues it has the right under section 92- 117, R.C,M. 1947, todetermine which forms are tobe used to promote the efficient administration of theWorkmen's Compensation Act. Rule 10 of the Rules of Procedure of the Division provides, inpart, that "Every claim for compensation shallbe iniII tiatedby filingof form 54, claim for compensation. Therefore, it argues, the only valid claim form 

### is Form No. 54, claim for compensat,ion ora communication of similar content. There 

### isno doubt the ideal situation for the Division would be tohave every form filled out properly with the correct information, dated, signed, and filed on time. But realisticallythis 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 

### istitled "Claim for

### omp pens at ion", although section 92-601 requires that a claimbe 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 allare sophisticated, nor are allhighly educated, The Montana legislaturehas mandated, and this Court has held, that theWorkmen'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, 133Mont, 198, 321 P.2d 1094, 1097. Section 92-601, R.C.M. 1947, does not statethat Form 54 must be submitted to the Division. It merely requires that a claim inwritingbe made under oath. This Court in Chisholm v. Vocational School for Girls, 103Mont. 503, 507, 

### 64 P.2d 838, held that the techinical requirement of the notice tobe given under oath 

### isnot required. Therefore, the only requirement of section 92- 601 

### is that written noticebe given. Here, claimant wrote to the Division inreply 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 liketo 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 atpresent, but that he should fillout form 54 athis convenience. The Division should have known that claimant did not fully understand the importance of filingform 54, because he had failed to do so. Under such circumstances it must act toprotect claimant's rightsby helping him complete the form, ifnecessary. By failing
so to do the Division 

### is estopped from denying claimant his claim, for having failed to filea 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, allof which the Division had in 

### itsfiles, Mr. Winfield, the fieldagent for the Division, could have easily acquired it on one of his several visitswith claimant. Winfield testified thatwhen claims have inadequate information, it 

### iscustomary for him to further investigate. This 

### isnot to say that the requirements of the Division
orthe statutes can be ignored nor that the Division must file the required form forclaimants in allcases. In Yurkovich v. Industrial Accident Board, 132Mont. 77, 314 P.2d 866, this Court held that itwas 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 injuredworkman when he comes to the Board and asks for information. The Court furtherheld that this placed the Board ina position of trust and itwas obligated to investigate
on its own, ifnecessary, todetermine entitlement to compensation by the injuredworkman. Failure todo so inYurkovich 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

### isrequired to invoke equitable estoppel, and citesnumerous
cases wherein an insurance company, a doctor, a company lawyer, 

### a cityclerk and mayor activelymisinformed the injuredworkman 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, 162Mont. 469, 512 P.2d 1304, to support 

### its position. We agree with the law 

### as stated inRicks

# . It merely restates that the doctrine

### willbe applied if there have been affirmative actswhich prevent the claimant from filing or lead him tobelieve he need not do so. The factshere stillmust control the result reached inthepresent 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 statutewhich was passed solely for thebenefit of the employer and the insurance carrier, i.e., the Statuteof 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 injuredworkman, where the law itself says that theWorkmen's Compensation Act shallbe construed liberally. II 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.