Williams v. Wellman-Power Gas, Inc.

• Citation: 571 P.2d 90,174 Mont. 387,34 St.Rep. 1232
• Decision Date: 04 November 1977
• Docket Number: No. 13536,WELLMAN-POWER,13536
• Court: United States State Supreme Court of Montana
• Parties: Terry N. WILLIAMS, Claimant and Appellant, v.GAS, INC., Employer, and Hartford Accident & Indemnity Company, Defendant and Respondent.

Page 90

571 P.2d 90

174 Mont. 387

Terry N. WILLIAMS, Claimant and Appellant, v. WELLMAN-POWER GAS, INC., Employer, and Hartford Accident &

Indemnity Company, Defendant and Respondent.

No. 13536.

Supreme Court of Montana.

Submitted Oct. 7, 1977.

Decided Nov. 4, 1977.

Greg J. Skakles (argued), Anaconda, for claimant and appellant.

Poore, McKenzie, Roth, Robischon & Robinson, Butte, David J. Wing (argued), Butte, for defendant and respondent.

HARRISON, Justice.

Claimant Terry N. Williams appeals from the finding, conclusions and order of the Workers' Compensation Court dismissing his claim for benefits on the ground the claim was not timely filed.

Claimant, an employee of defendant Wellman-Power Gas, Inc., was injured in the course and scope of his employment February 15, 1973, when he fell and struck his elbow. He reported the accident to his employer and was taken to see Dr. John P. Lacey, who took X-rays of the elbow. The X-rays were negative, but the doctor could feel broken cartilage in the injured area. He informed claimant the cartilage was not likely to give him trouble but there was a possibility of severe swelling, in which case surgery would be necessary. No treatment was recommended or administered and claimant returned to work without any loss of wages.

The employer was enrolled under Plan II of the Workers' Compensation Act with insurance coverage provided by defendant Hartford Accident & Indemnity Company. A report of occupational injury and disease was filed with the Workers' Compensation Division February 20, 1973. The insurer paid the medical expenses for the initial examination.

On April 10, 1973, the division notified the insurer to forward Form 54, Claim for Compensation, to claimant. The Workers' Compensation Court found this form was duly mailed to claimant, along with a cover letter advising him to fill out the form and return it for the insurer's files. Claimant disputes this finding and denies receiving the form.

Claimant did not file a claim and apparently had no more trouble with the elbow until the summer of 1975, when he began to experience pain while working for a different employer in Alaska. He returned to Dr. Lacey in October 1975, and surgery was performed by a specialist. Claimant filed a claim for compensation with the division December 17, 1975. The division and the Workers' Compensation Court denied the claim.

Claimant presents three issues for review: 1) Did the twelve month statute of limitation under section 92-601, R.C.M.1947, prior to amendment in 1973, commence to run only after the discovery of a latent injury? 2) Does the amendment to section 92-601, effective July 1, 1973, apply to this action? 3) Should the employer and insurer be found to have waived and be estopped from asserting the statute of limitation?

Because of our disposition of Issue 2), it is unnecessary to discuss Issues 1) and 3).

On February 20, 1973, the date of the accident, section 92-601, provided:

"Claims must be presented within what time. 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."

On July 1, 1973, an amendment to section 92-601 became effective. The amendment did not change the twelve month limitation period but added this paragraph:

"The division may, upon a reasonable showing by the claimant of lack of knowledge of disability, waive the time requirement, up to an additional twenty-four (24) months."

Claimant petitioned for an extension under this paragraph, but the court concluded the amendment could not be applied retroactively to give the division discretion to allow the claim.

At the outset, we note that the Workers' Compensation Act has always been liberally construed in favor of the injured claimant. Section 92-838, R.C.M.1947; Rumsey v. Cardinal Petroleum, 166 Mont. 17, 530 P.2d 433 (1975); State ex rel. Romero v. District Court, 162 Mont. 358, 513 P.2d 265 (1973); Ness v. Diamond Asphalt Co., 143 Mont. 560, 393 P.2d 43 (1964). We also note the 1973 amendment to section 92-601 was passed to alleviate a condition that was directly contrary to the stated purposes and policies of the Workers' Compensation Act. Prior to July 1, 1973, a claim was required to be filed within twelve months of the date of the accident, regardless of the circumstances. If an injury did not manifest itself until more than twelve months after the date of the accident , the injured party had no recourse and simply was required to bear the expenses of the injury. Criticism of this situation is well expressed in 3 Larson, Workmen's Compensation Law, § 78.42(b), p. 15-104:

"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 only when he inexcusably delays assertion of 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 yet matured; and when it matures, it is already barred. * * * "

The 1973 amendment offered a solution to this problem by granting the division the authority to extend the time period on a reasonable showing of lack of knowledge of the disability. In view of these circumstances, it is not unreasonable to construe the amendment liberally to give it broad application.

However, defendant asserts that to so construe the amendment to apply to the instant claim would be a retroactive application of the...