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Partin v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

March 14, 1997

TIMOTHY PARTIN Appellant
v.
STATE COMPENSATION INSURANCE FUND Respondent.

          Submitted Date: January 14, 1997

          DECISION ON APPEAL

          Mike McCarter Judge.

         Summary: After State Fund denied liability for an alleged accident on the ground claimant failed to file a written claim within the one-year period provided under section 39-71-601(1), MCA (1991), appellant petitioned the Department of Labor and Industry for a waiver of the one-year filing requirement. The Employment Relations Division of the Department granted the waiver, but State Fund requested a hearing. The hearing officer denied the claimant's request for a waiver, also holding that an Association of Service Contractors (AOSC) accident report did not satisfy the written claim requirement. The hearing officer reached his conclusions without making credibility resolutions.

         Held: The hearing officer's determinations are reversed and the matter remanded to the Department. If claimant's testimony is credited, he has established the requirements of equitable estoppel based on the employer's alleged representations to him concerning use of health insurance and payment of additional expenses by the employer. In addition, the hearing officer erred in his conclusion the AOSC report did not satisfy section 39-71-601(1), MCA (1991). The question of whether claimant in fact provided an AOSC report to the employer is for the Workers' Compensation Court because it does not involve waiver of the one-year limitations period, but whether a claim was timely filed. Claimant is free to petition the Court with regard to the AOSC report.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-601, MCA (1991). WCC reversed conclusion of DOL hearing officer that reversed Department's order waiving one-year filing requirement on basis of equitable estoppel. Hearing officer erred in finding that, even if claimant's testimony were credited, he had not established elements justifying equitable estoppel of assertion of statute of limitations. If claimant's testimony is credited, he has established the requirements of equitable estoppel based on the employer's alleged representations to him concerning use of health insurance and payment of additional expenses by the employer.
Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-601, MCA (1991). WCC reversed conclusion of DOL hearing officer that Association of Service Contractors (AOSC) accident report allegedly filed by claimant did not satisfy the written claim requirement of section 39-71-601, MCA (1991). Contention that an official workers' compensation claim form must be filed was rejected in Weigand v. Anderson-Meyer Drilling co., 232 Mont. 390, 393, 758 P.2d 260, 261-262 (1988), where the Supreme Court held the written claim must only contain sufficient information to inform the employer or insurer of the nature and basis of the possible claim and to enable it to investigate the claim and, if necessary, to prepare a defense.
Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-601, MCA (1991). The question whether claimant in fact provided a written report to the employer satisfying the one-year limitations period of section 39-71-601(1), MCA (1991) is for the Workers' Compensation Court, not the Department of Labor and Industry, because this question does not involve waiver of the one-year limitations period, but concerns whether a claim was timely filed.
Administrative Procedure: Contested Case Hearing: Evidence. DOL hearing officer did not err in refusing to allow claimant to present at a date following the date set for hearing telephonic testimony of a witness not listed by claimant, even though the witness had been listed by the respondent-insurer. If claimant had been permitted to introduce the testimony, it would have been necessary to allow respondent to produce rebuttal testimony, extending and delaying the hearing.
Claims: Filing. WCC reversed conclusion of DOL hearing officer that reversed Department's order waiving one-year filing requirement on basis of equitable estoppel. Hearing officer erred in finding that, even if claimant's testimony were credited, he had not established elements justifying equitable estoppel of assertion of statute of limitations. If claimant's testimony is credited, he has established the requirements of equitable estoppel based on the employer's alleged representations to him concerning use of health insurance and payment of additional expenses by the employer.
Claims: Filing. WCC reversed conclusion of DOL hearing officer that Association of Service Contractors (AOSC) accident report allegedly filed by claimant did not satisfy the written claim requirement of section 39-71-601, MCA (1991). Contention that an official workers' compensation claim form must be filed was rejected in Weigand v. Anderson-Meyer Drilling co., 232 Mont. 390, 393, 758 P.2d 260, 261-262 (1988), where the Supreme Court held the written claim must only contain sufficient information to inform the employer or insurer of the nature and basis of the possible claim and to enable it to investigate the claim and, if necessary, to prepare a defense.
Claims: Filing. The question whether claimant in fact provided a written report to the employer satisfying the one-year limitations period of section 39-71-601(1), MCA (1991) is for the Workers' Compensation Court, not the Department of Labor and Industry, because this question does not involve waiver of the one-year limitations period, but concerns whether a claim was timely filed.
Limitations Periods: Claim Filing: Waiver of Time: Estoppel. WCC reversed conclusion of DOL hearing officer that reversed Department's order waiving one-year filing requirement on basis of equitable estoppel. Hearing officer erred in finding that, even if claimant's testimony were credited, he had not established elements justifying equitable estoppel of assertion of statute of limitations. If claimant's testimony is credited, he has established the requirements of equitable estoppel based on the employer's alleged representations to him concerning use of health insurance and payment of additional expenses by the employer.
Limitations Periods: Tolling. WCC reversed conclusion of DOL hearing officer that reversed Department's order waiving one-year filing requirement on basis of equitable estoppel. Hearing officer erred in finding that, even if claimant's testimony were credited, he had not established elements justifying equitable estoppel of assertion of statute of limitations. If claimant's testimony is credited, he has established the requirements of equitable estoppel based on the employer's alleged representations to him concerning use of health insurance and payment of additional expenses by the employer.
Limitations Periods: Claim Filing: Generally. WCC reversed conclusion of DOL hearing officer that Association of Service Contractors (AOSC) accident report allegedly filed by claimant did not satisfy the written claim requirement of section 39-71-601, MCA (1991). Contention that an official workers' compensation claim form must be filed was rejected in Weigand v. Anderson-Meyer Drilling co., 232 Mont. 390, 393, 758 P.2d 260, 261-262 (1988), where the Supreme Court held the written claim must only contain sufficient information to inform the employer or insurer of the nature and basis of the possible claim and to enable it to investigate the claim and, if necessary, to prepare a defense.
Witnesses: Disclosure Requirements. DOL hearing officer did not err in refusing to allow claimant to present at a date following the date set for hearing the telephonic testimony of a witness not listed by claimant, even though the witness had been listed by the respondent-insurer. If claimant had been permitted to introduce the testimony, it would have been necessary to allow respondent to produce rebuttal testimony, extending and delaying the hearing.

         This is an appeal from a decision of the Department of Labor and Industry (Department) denying the appellant's application for a waiver of the time for filing his workers' compensation claim.

         Procedural Background

         Timothy Partin (claimant) alleges that he suffered an industrial accident on September 13, 1992, while working for Sun Well Service, Inc. Sun Well was insured by the State Compensation Insurance Fund (State Fund), which has denied liability for the accident on the ground that claimant failed to file a written claim within the one-year period provided under section 39-71-601(1), MCA. (Pre-hearing Order, Uncontested Fact 3.)

         On February 4, 1994, claimant petitioned the Department for a waiver of the one-year filing requirement. (Pre-hearing Order, Uncontested Fact 4.) On March 17, 1994, the Employment Relations Division of the Department issued an initial Order Waiving Claim Filing Time. The Order found that claimant had made "a reasonable showing" that he had "BEEN EQUITABLE [sic] ESTOPPED FROM FILING HIS CLAIM."[1](Ex. 14; capitalization in the original.)

         The State Fund did not accept the initial determination and requested a hearing on the matter. (Department File, Notice of Appeal (May 4, 1994)). A hearing was held in Billings, Montana, on October 26, 1994. The hearing officer permitted the parties to submit post-trial briefs and proposed findings of fact and conclusions of law. The last brief was filed on April 18, 1995, at which time the matter was submitted for final decision.

         On August 1, 1996, some twenty-two months after the hearing and fifteen months after submission of the case for decision, the hearing officer issued his Findings of Fact, Conclusions of Law, and Order (Findings). In his Findings, the hearing officer reversed the Department's initial order and denied the claimant's request for a waiver of the one-year filing requirement. He found that the employer and the State Fund were not estopped from asserting the one-year statute of limitations.

         He also held that an AOSC Injury Report, which the claimant testified he had submitted to his employer immediately following his industrial accident, did not satisfy the requirements of section 39-71-601(1), MCA. He did not resolve conflicting testimony or determine the credibility of the witnesses.

         On August 30, 1996, the claimant appealed the Department's final determination to this Court. (Court File, Petition for Review.) During the pendency of the appeal, claimant moved for leave to present additional evidence. (Court File, Motion for Leave to Present Additional Evidence (December 20, 1996).) The motion was denied on January 13, 1997. (Court File, Order Denying Motion to Present Additional Evidence.) Meanwhile, the parties completed their briefing of the issues raised on appeal. The matter is now ready for decision.

         Record on Appeal

         The record on appeal consists of a transcript of the hearing, the complete file from the Department, including 17 exhibits consisting of respondent's Exhibits 1 through 15 and claimant's Exhibits A and B[2]

         Factual Background

         Sun Well Service, Inc. (Sun Well) operates oil service rigs. (Tr. at 77.) It is based in Williston, North Dakota. Its sole shareholder and president is Marvin Lee Kaiser. (Id.)

         Claimant was employed by Sun Well from May 19, 1988 to October 15, 1993. He worked at a variety of jobs including floor hand, operator, and tool pusher.

         Beginning in mid-1991, claimant experienced left shoulder pain. He did not miss work as a result of this condition, however, he did seek medical treatment. Initially, he was treated by his family physician, Dr. Ashcraft. Dr. Ashcraft injected claimant's shoulder with cortisone but the injection failed to provide claimant with relief. Dr. Ashcraft then referred claimant to Dr. Lotfi Ben-Youssef, an orthopedic surgeon.

         1. Facts pertaining to the accident and the claim.

         On September 13, 1992, the claimant tripped and fell over a power cord while running towards the "dog house" at an oil rig site near Scobey, Montana. (Tr. at 29.) He fell on his head and right shoulder. Brad Gilbertson (Gilbertson), a co-employee, witnessed the fall.

         Shortly after the incident both claimant and Gilbertson went into the pusher shack. Their supervisor, Lynn Sundby (Sundby), was in the shack. Gilbertson told Sundby about the fall, elaborating that he "should have seen that fall, it was funny to watch." (Id. at 195.)

         According to claimant, Sundby directed him to fill out an Association of Service Contractors (AOSC) accident report. The AOSC is a voluntary organization to which Sun Well belongs. It has a safety program which requires that all accidents be reported. Sun Well subscribes to the program and requires its employees to fill out and file an AOSC accident form for each incident. The information is then submitted to the AOSC, which uses it to design safety programs.

         Kaiser testified that the filing of an AOSC report triggers the completion and submission of an Employer's First Report of Injury for workers' compensation. He provided the following testimony:

MARTELLO . . . AOSC report, that an employer's report is submitted shortly thereafter?
KAISER: Generally I would expect that to be true. It's either precipitated by that or by the initiation and a medical provider as a result of a medical provider sending it to us.
MARTELLO So in other words, if you get some indication, either through the AOSC report or a medical report that there's been an on the job injury, you fill out, as the employer, you fill out the employer's portion of the employer's report that's submitted to workers' comp.
KAISER: Yeah. This is a Montana report, . . . .

(Id. at 122.)

         Claimant testified that he was given the AOSC form to fill out and that he took it home to his motel room that evening, where he completed it. According to claimant, the next morning he had the motel clerk make a copy of the report for his personal records and he then took the original back to work and put it on Sundby's desk. (Id. at 37, 40-41.)

         Claimant's testimony concerning his completion and submission of the report was uncorroborated. Gilbertson, who was claimant's roommate at the motel, testified that he did not remember the claimant filling out the report at the motel or seeing the claimant give the report to Sundby the following morning. Sundby denied that claimant either gave him the AOSC report or put it on his desk the following morning. He testified that had he received an AOSC report he would have changed the description of the accident. The report reads, "Running To Dog House & Triped [sic] Over Power Cord & Landed Shoulder First On Ground." (Id. at 2.) Sundby said he would have changed the report to reflect the fact that claimant was involved in a game of "kick the hard hat" at the time he tripped and fell. (Id. at 134.) Sundby, Kaiser, and Carolyn Lynch, an office worker for Sun Well, all testified that the AOSC report was not in Sun Well's files.[3] They said that they first learned of it in January 1994 when it and a claim for workers' compensation benefits were forwarded to Sun Well by the State Fund. In any event, Sun Well did not file an Employer's First Report at that time.

         On October 15, 1993, claimant resigned his employment with Sun Well. Approximately a month after leaving Sun Well, the claimant contacted Kaiser and asked what the company was going to do about his shoulder problems. Kaiser denied responsibility for the problems. Claimant then completed two formal claims for compensation. One was for his left shoulder problem, which became symptomatic in June of 1991.[4] The second was for the September 13, 1992 injury to his right shoulder. Both claims were submitted to the State Fund on January 3, 1994. On February 1, 1994, Sun Well submitted an Employer's First Report to the State Fund. (Ex 10.)

         2. Facts pertaining to claimant's medical care and his estoppel argument.

         Following his September 13, 1992 accident, claimant was first treated by Dr. Ben-Youssef, who practices in Sidney, Montana. Prior to his injury the claimant had intended to go see Dr. Ben-Youssef about his left shoulder but had to postpone his visit when he was sent to work at the rig near Scobey. (Tr. at 33, 37-38, 165-66.) Upon returning from Scobey, he went in to see the doctor with respect to both shoulders.

         Dr. Ben-Youssef examined claimant on September 18, 1992. His office notes for the exam state in relevant part:

. . . 26-year old male who has been complaining of 6 months history of left shoulder pain increased with lifting activity. The patient states that his right shoulder was slightly aching but last week he fell on his right arm and the right shoulder started hurting also. . . .
P.S. The patient does a lot of heavy lifting at work and his problem may be related to avascular necrosis of the lateral end of both clavicles although he is not tender at that level.

(Ex.9, emphasis added.) While Dr. Ben-Youssef noted the claimant's fall, his note does not indicate the ...


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