Klein v. Independent Wholesale Associated Grocers

• Decision Date: 03 September 1975
• Docket Number: No. 12902,12902
• Citation: 32 St.Rep. 738,538 P.2d 1358,167 Mont. 341
• Parties: Abe KLEIN, Claimant and Respondent, v. INDEPENDENT WHOLESALE ASSOCIATED GROCERS and State Insurance Fund, Defendantsand Appellants.
• Court: Montana Supreme Court

Page 1358

538 P.2d 1358

167 Mont. 341

Abe KLEIN, Claimant and Respondent, v. INDEPENDENT WHOLESALE ASSOCIATED GROCERS and State Insurance Fund, Defendantsand Appellants.

No. 12902.

Supreme Court of Montana.

Submitted April 7, 1975.

Decided July 21, 1975.

Rehearing Denied Sept. 3, 1975.

Harris, Jackson & Utick, Andrew J. Utick argued, Helena, for defendants and appellants.

Fillner & Snyder, Charles E. Snyder argued, Billings, for claimant and respondent.

CASTLES, Justice.

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 ser 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 III 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 injury 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 Harney 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.

'1. Write plainly with ink or typewriter.

'2. Give the facts with particular care to describe the accident itself fully.

'3. State exactly the days physically disabled and the amount of wages-in figures-lost for each of these days.

'4. Be sure to enter the birthdates (month, day, year) of dependent children, sign the claim and show your correct mailing address.

'5. 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.

'6. 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.

'Very truly yours,

'INDUSTRIAL ACCIDENT BOARD

'/s/ Margaret Condon Secretary.'

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:

'12-28-67

'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.

'Thank you,

'/s/ Abe Klein

1204 Harney 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

'Dear Mr. Klein:

'Regarding your recent note in response to our mailing of a claim for Compensation for your completetion 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.'

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 strain'; that due to his wage loss claimant was entitled to maximum temporary benefits of 62 1/2% of his wages or a statutory maximum of $46 per week, and permanent partial disability compensation benefits of 62 1/2% 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.'

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.'

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 Division's findings. Meznarich v. Republic Coal Co., 101 Mont. 78, 53 P.2d 82; Beatty v. Wellman Power and Gas, Inc., Mont., 538 P.2d 1, opinion handed down July 8, 1975.

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

'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...