Levo v. General-Shea-Morrison

• Decision Date: 10 March 1955
• Docket Number: No. 9481,GENERAL-SHEA-MORRISON and L,9481
• Citation: 12 St.Rep. 77,280 P.2d 1086,128 Mont. 570
• Parties: Arthur G. LEVO, Plaintiff and Appellant, v.iberty National Insurance Co., Defendants and Respondents.
• Court: Montana Supreme Court

Page 1086

280 P.2d 1086

128 Mont. 570

Arthur G. LEVO, Plaintiff and Appellant, v. GENERAL-SHEA-MORRISON and Liberty National Insurance Co.,

Defendants and Respondents.

No. 9481.

Supreme Court of Montana.

Submitted Jan. 5, 1955.

Decided March 10, 1955.

Leif Erickson, Helena, argued the case orally for appellant.

Harold L. McChesney, Helena, Frank I. Haswell, Whitefish, for respondent. Harold L. McChesney argued the case orally.

ANDERSON, Justice.

This is an appeal from a judgment of the district court affirming an order of the industrial accident board, which order denied the appellant Levo recovery under the Workmen's Compensation Act because of his failure to file a claim within one year after the happening of the accident as is provided for by R.C.M.1947, Sec. 92-601.

The conclusions of law adopted by the industrial accident board which were sustained by the judgment of the district court are as follows:

(1) That claimant suffered an injury as defined by the Workmen's Compensation Act entitling him to compensation upon the filing of a proper claim within one year following said injury;

(2) That by reason of his failure to file claim for compensation within one year following his injury the claimant's claim is barred by the Statute of Limitations and his claim should be denied and dismissed by reason thereof.

Unless there is something in the record which excuses the claimant from his failure to file his claim within a year we must sustain the district court and the industrial accident board.

This court has held that equitable estoppel may prevent a defendant from contending that a claim was not filed in time. McCoy v. Mike Horse Min. & Mill. Co., 126 Mont. 435, 252 P.2d 1036; Lindblom v. Employers' Liability Assurance Corp., 88 Mont. 488, 295 P. 1007.

In the instant case the claimant knew the extent of his injuries and in this respect the facts differ from the McCoy case, supra, and it is argued that for that reason the doctrine of equitable estoppel does not lie, yet we find language used in the McCoy case which is most cogent here in determining the results hereinafter announced. Quoting from this case it is said [126 Mont. 435, 252 P.2d 1039]: 'A liberal construction of the Compensation Act is commanded in order that the humane purposes of the legislation shall not be defeated by narrow and technical construction, and the intention of such requirement is for the benefit and protection of the injured workman and his beneficiaries. Tweedie v. Industrial Accident Board, 101 Mont. 256, 53 P.2d 1145; Edwards v. Butte & Superior Min. Co., 83 Mont. 122, 270 P. 634.'

It becomes important to point out that the record leaves no doubt but what Mr. Levo, the claimant, General-Shea-Morrison, the employer, Liberty National Insurance Company, the insurer, and the industrial accident board, all believed at the time the accident occurred, that the injury which Mr. Levo sustained was not compensable as contemplated by the Workmen's Compensation Act. A few excerpts from the record bear this out.

The date of the accident was November 18, 1951, about which there was no dispute. To a claim filed by the claimant February 18, 1953, the Liberty National Insurance Company, through its agent, said among other things: 'We are liable only for accidental injuries arising out of and in the course of employment. There is nothing in your claim to substantiate accidental injury, rather your condition would appear to be one the result of disease.'

There is also evidence in the record to the effect that Mr. Levo was presented with an ambulance bill, the payment of which had been turned down by Liberty National Insurance Company. This bill was presented to Mr. Levo shortly after the accident occurred and before any claim for compensation had been filed with the industrial accident board.

The claimant, Mr. Levo, testified in part as follows when asked about what he had done about filing a claim: 'I was wondering about compensation. He [Mr. Duffy, a friend and agent of claimant] said he would go up there for me and find out. He went up to the dam and contacted Mel Hord [the assistant project manager], and Mel Hord told him there wasn't a thing in the world they could do for it at all. Q. Did he provide Mr. Duffy with a claim blank for filing? A. No, Mr. Duffy asked for them, he didn't give him any, said 'No use, nothing we could do."

Mel Hord was the personnel manager and assistant project manager for the employer. Mr. Duffy corroborated what was said by claimant and Mr. Hord had the following to say when asked the following question: 'Q. Now you said that on Mr. Duffy's testimony which reads, 'Jim, that doesn't come under compensation, nothing we can do about this, there is no accident about that.' That was approximately a correct statement of the conversation that occurred that referred to compensation, is that true? A. I would say in general language, yes.'

The record leaves little doubt but what Mr. Mel Hord had the unqualified right to speak for the employer General-Shea-Morrison.

R.C.M.1947, Sec. 92-808, states that every employer of labor and every insurer is required to file with the board a full and complete report of every accident to an employee. This section of the Code is just as compelling as section 92-601 under which the employer and the insurer now seek to avoid payment of the compensation. Yet no such report has ever been filed so far as the record shows. We may draw the conclusion that the employer thought the injury to claimant to be one without the purview of the Workmen's Compensation Act.

Some of the testimony by Mr. Duffy should be referred to here.

'Q. Did you have a conversation with Mel Hord about Mr. Levo's complaint? A. I did right there.

'Q. Tell us what the conversation was. A. I told him he was just the man I wanted to see. Wanted to see him about Art Levo. He said, 'How is Art getting along?' I said nobody knew just how he was making it. At the same time was better today. I was interested in getting the necessary blanks to file a claim. His sister was going to take care of filing a claim. He said: 'Jim, that doesn't come under the compensation. Nothing we can do about this. There is no accident about that.'

'Q. Did he indicate he knew Mr. Levo had suffered this heart attack? A. Yes, he did. He asked me how he was getting along and what I thought his chances were. I asked him again for the blanks. He said, 'Won't do any good, just a waste of time monkeying with them.' I took him at his word and reported to Art and his sister.

'Q. Did you report to Art the substance of the conversation as you told us? A. I did.

'Q. Was it your conclusion compensation was not allowable for Art's attack under the circumstances? A. I got the belief that that must be the fact. I thought he knew what he was talking about.'

Mel Hord testified that in any event the claim blanks were not kept by him but were at the first aid station. This of course in no way refutes what was said to Duffy.

The claimant, Mr. Levo, was asked:

'Q. Were you satisfied with Mr. Duffy's report on that to you? A. No, I wasn't.

'Q. What did you do? A. I had Dan Korn come up to the hospital.

'Q. Do you know whether he was representing General-Shea-Morrison as their attorney? A. I am quite sure he was. I was under the impression that he was General-Shea-Morrison's lawyer.

'Q. Is that the reason you talked to him? A. That's right.

'Q. That conversation occurred in the hospital? A. Right in the hospital.

'Q. Do you know when that was? A. Shortly after I was in there, I believe I was still taking oxygen, if I remember right.

'Q. What was the conversation? A. I asked him what could be done about compensation? He said, 'Not a thing, there isn't a thing in the world, just one of those things. Too damn bad nothing we could do about it."

Dan Korn's advice in no way justifies a different conclusion than the one reached by claimant and the fact that he was not on a retainer but a mere fee lawyer for the employer gives no reason why the claimant, a workman, should not draw the conclusion that he did. We would be giving the Act a narrow construction if we concluded that a workman would be bound to differentiate between a fee basis lawyer and one on a retainer basis.

As to the period following the conversation with Mr. Dan Korn, the lawyer, Mr. Levo was asked:

'Q. Did you make any further effort to file a claim? A. I figured it was no use, took them at their word after the lawyer told me there was nothing I could do. That is the reason I didn't file a claim.

'Q. How did you come to file a claim when you did? A. I heard about a case, that is how I happened to file.

'Q. As soon as you heard about the Mapston Case you had Mr. Byers of the electrician's union contact me? A. That's right. Also asked him if he could get forms to fill out from the company. I was afraid if I went up they wouldn't give them to me. So he went up and got the forms for me.

'Q. And how long after you heard of the Mapston Case was that done? A. Oh, within a week, I think, maybe a little longer.'

The testimony of Daniel Korn caused the claimant to believe that heart attacks were not covered by compensation, that Mr. Korn knew they weren't covered by compensation because he was a company lawyer, that not a thing could be done about compensation, that 'There isn't a thing in the world, just one of those things, too damned bad, nothing we could do about it.'

Although the record is silent insofar as it does not tie Dan Korn closely enough to the company so that it could be claimed under the doctrine of equitable estoppel that the company was bound by his advice to the claimant, nonetheless Mel Hord's comments were ones for which the company was responsible and coupled with those of Dan Korn little else could be expected of the claimant than for him to rely upon them.

We hold that as a matter of law, Arthur Levo had a right to conclude what he did and that his...