Gugler v. Industrial Accident Board , 117 Mont. 38 ( 1945 )

I dissent, and do so reluctantly because the record discloses very apparently that the claimant here was misled by his employer and physician, and that the Industrial Accident Board displayed a regrettable lack of diligence in protecting his interests, first in not providing him with a form on which to present his claim, and, second, in holding up disposition of the matter for nearly two years after his claim was attempted to be filed.

No claim for compensation was filed by plaintiff, or in his behalf, in accordance with the provisions of Sec. 2899, Revised Codes 1935, until February 13, 1939. Under date of June 17, 1938, over a year and a half after the accident, plaintiff wrote the following letter to the board:

"Hamilton, Montana, "June 17, 1938.

"Industrial Accident Board "George Niewoehner, Secretary "Helena, Montana

"Dear Sir:

"I suffered from an eye injury while in the employ of the City of Hamilton in the winter of 1936 and when it ceased to pain me the town clerk notified you of termination of disability. I could not see with the eye for some time after it was hurt but thought that vision would return to normal. It has not and there is very little sight in the injured eye.

"I am writing you at this time to see if you will give Dr. Hayward (who took care of the case) authority to send me to eye specialist.

"Very truly yours, "Chester W. Gugler."

The board replied to this letter as follows:

"Chester W. Gugler "June 22, 1938.

"Hamilton, Montana

"Dear Sir:

"In reply to your letter of June 17th, we are sorry to advise you the Workmen's Compensation Act only provides medical treatment during the first six months following the date of the accident. Therefore, it is impossible to pay for treatment out of the Fund when that treatment is received after six months from the date of the accident.

"The compensation law further provides that an injured man must make a claim for compensation within one year from the date of the accident, or his case will be barred.

"Our records show that your claim was not filed, and therefore, we must inform you that it will be impossible to pay compensation.

"Very truly yours, "Industrial Accident Board. "Secretary."

Plaintiff's claim (filed February 13, 1939) states with reference to the injury "That * * * a piece of steel spit from the said hammer, and lodged in my left eye, from which I have suffered considerably since that time, and which will be necessary to have removed by an eye specialist."

In reply to a letter from plaintiff's attorney, enclosing the claim, the board advised the attorney that the claim was barred because not filed within one year from the date of the accident, and that "we cannot allow payment of compensation."

A hearing on the claim was held by the board on November 29, 1940, and by an order dated August 22, 1942 the claim was denied and dismissed. Petition for rehearing was denied by the board on September 9, 1942, and on September 29, 1942, notice of appeal from the aforementioned order denying the claim and the order denying petition for rehearing was filed.

On April 21, 1943, findings and conclusions were adopted and filed by the court, and on April 24, 1943, judgment was entered in favor of plaintiff and against defendant in the sum of $1,442, being compensation at the rate of $14.42 per week for a period of 100 weeks.

Nineteen specifications of error are assigned by appellant. In view of the majority opinion it is necessary to discuss only one of the conclusions upon which the trial court based its decision, namely, "That the said written report filed with the said Board on December 18, 1936, and the written claim for expenses filed with the said Board on the 15th day of January, A.D. 1937, by said Dr. Hayward, constituted and was a substantial compliance with the limitations contained within the purview of Sec. 2899 of the Revised Codes of the State of Montana, 1935."

Sec. 2899, Revised Codes 1935, provides: "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 some one legally authorized to act for him in his behalf."

It is conceded by respondent that no claim was filed by him within the period prescribed, and the record contains no evidence that any claim was filed within such period by anyone legally authorized to act for him in his behalf. Respondent, however, contends, and the court below held, that the filing of the employer's report and of the physician's report and claim, above noted, constituted a compliance with the requirements of this section. This contention has no merit. To so hold would render Sec. 2899, as well as Sec. 3006 (which provides that where a workman is entitled to compensation under Plan No. 3 he shall file with the board his application therefor), meaningless and surplusage in all cases where employer's and physician's reports are filed. Provisions for filing such reports are found in Secs. 2934 and 2917, respectively. Such reports do not constitute the basis for awarding compensation such as is contemplated by these sections, that is, the weekly payments specified in the Act.

In construing similar provisions of the Oregon Workmen's Compensation Act, in a case where the employer had submitted a report of injury but no claim was submitted by the injured workman, the Supreme Court of Oregon, in Rohde v. State Industrial Accident Commission, 108 Or. 426, 217 P. 627, 629, said:

"It has been argued that the fact that the employer and the physician both made a report confers jurisdiction upon the Commission. * * * Under a statute similar to our own the Supreme Court of Washington thus states the principle: [Quoting Stertz v. Industrial Ins. Comm., 91 Wash. 588, 158 P. 256, Ann. Cas. 1918B, 354.]

"If the injured workman files his application in the manner prescribed by the statute, his right to compensation is neither aided nor prevented by the filing or non-filing of reports by the physician and employer. The application of the injured employee is the exclusive formula by which the Commission gains jurisdiction in any particular case. * * * All the facts upon which the applicant's claim for compensation might have been based * * * were likewise stated but more fully in the original report of the employer, noted above; but, as we have seen, the statement of the employer is not a basis for compensation, nor can it affect the rights of the applicant one way or the other." Taslich v. Industrial Commission, 71 Utah 33, 262 P. 281, 284; Smith v. State Industrial Accident Commission, 144 Or. 480,23 P.2d 904, 25 P.2d 1119.

As is said by the Supreme Court of Oregon in Rohde v. State Industrial Accident Commission, supra, 217 P. at p. 630, a case involving power of the commission to waive the provisions of a somewhat similar statute: "Those precedents have no application to a statute like ours. While private parties such as those described in those enactments may waive their own rights, public officers cannot waive the rights of the people. In this instance the commissioners could not waive the filing of a valid application by the injured employee as a basis for disbursing public funds. * * * The commissioners are public officers, charged with the administration of that trust fund under what is known as the Workmen's Compensation Act. This law was enacted under the police power of the state, which is a governmental and not a proprietary function. Los Angeles Gas [ Electric] Co. v. Los Angeles, D.C., 241 F. 912. Neither the state nor any of the commissioners claim any proprietary or individual interest in the fund. Commissioners function as any other public officers operating under state authority. The well-settled rule is that in all governmental affairs, as distinguished from mere proprietary matter, neither the state nor any of its officers acting in a governmental capacity are estopped by any act of any such officer."

This rule is followed in the later Oregon case of Rosell v. State Industrial Accident Commission, 164 Or. 173,95 P.2d 726, 734, where the court said: "The Oregon workmen's compensation law makes provision for the injured workman or, in case of his death, for his beneficiaries, unknown to the common law. The legislature had a right to append such conditions as it chose to the privilege of receiving compensation. Lough v. State Industrial Accident Commission [104 Or. 313, 207 P. 354, 355]; Demitro v. State Industrial Accident Commission,110 Or. 110, 223 P. 238; Pine v. State Industrial Commission,148 Okla. 200, 298 P. 276, 78 A.L.R. 1287, * * *. One of the conditions the law imposes on the right to receive compensation is that applications therefor must be filed within certain designated time. Neither the commission nor the courts have authority to waive this requirement of the statute."

No action of the board in this instance can be construed as a waiver of the requirements of Sec. 2899, even though the board might legally waive same. To the contrary, every action and proceding of the board concerning the attempted enforcement of the claim demonstrates its determination to strictly adhere to such requirements.

This court has repeatedly held that Sec. 2899 is mandatory and that a compliance with its requirements is indispensable to the existence of the right to maintain procedings to compel the payment of compensation. Chmielewska v. Butte Superior Mining Co., 81 Mont. 36, 261 P. 616; Williams v. Anaconda Copper Mining Co., 96 Mont. 204, 29 P.2d 649; and see Moody v. State Highway Dept., 56 Idaho 21, 48 P.2d 1108.

I have in mind the mandate of the legislature, as expressed in Sec. 2964, Revised Codes 1935, that the Workmen's Compensation Act be liberally construed in order to promote justice. But, as is said by this court, speaking through Mr. Chief Justice Callaway, in the Chmielewska case, supra [Mont. 36, 261 P. 617]: "In the construction of a statute the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted." Sec. 10519, Revised Codes 1935.

The statute under consideration is clear and unambiguous as to the date when the period of limitation begins, and therefore needs no interpretation. Clark v. Olson, 96 Mont. 417, 431,31 P.2d 283. Workers suffering industrial accidents, whose compensable injuries do not become apparent during the period prescribed, can preserve their rights by filing a claim within such period. Then, should the injury subsequently develop into one compensable by payment of disability benefits, the board would have jurisdiction to grant relief under Sec. 2956, Revised Codes 1935. In this case claimant knew, or should have known, within the limitation period, that his injury was or would become permanent. It seems clear from the evidence that the failure to apply for compensation was caused by the ignorance of claimant and his advisors that the law required the filing of a claim by him.

The majority opinion effectively nullifies the plain mandate of Secs. 2899 and 3006, supra. By the simple expedient of deciding that the payment for medical services by the board (as it is required to do by Sec. 2917) constitutes assumption of jurisdiction of the case for all purposes, the majority opinion holds that the submission of a physician's bill constitutes the filing of a claim for compensation by the claimant, and puts on the board the duty and obligation of investigating every superficial and noncompensable cut and scratch which may be treated by a physician. The majority opinion ignores the statutory requisite that the workman's claim in writing under oath be presented to the board, either by the claimant or someone legally authorized to act for him in his behalf. It concedes that no claim was filed by the claimant or anyone legally authorized to act for him, and circumvents that requirement by the fiction that claimant, by remaining silent, ratified the unauthorized act of the physician in filing a claim for payment for medical services performed. Does Sec. 2899 mean that a person filing a claim for another be authorized to do so at the time the claim is filed? Or does it mean that the claim, at the time of its filing, be unauthorized, but subject to later ratification? The answer is obvious. The act requires the board and not the claimant to furnish (and by implication to pay for) medical services, and the physician does nothing more than to claim such payment. This conclusion is further supported by the fact that the physician's report and claim gave the board no information upon which it could possibly determine that the injured workman had or might have a compensable claim — compensable in the sense that he was or might be entitled to reimbursement for loss of time. For instance, it does not purport to advise the board that the injury arose out of or in the course of his employment.

Numerous cases are cited in the majority opinion to the effect that the furnishing of medical services is to be regarded as compensation. Many more are in the books. But they do not hold that this constitutes compensation in the sense contemplated by Secs. 2899 and 3006. They are based upon statutes dissimilar to these, and mostly hold to the effect that the furnishing of such services either tolls the running of the limitation statute or estops reliance upon it because of waiver. The doctrine of waiver and estoppel has no application to this case.

A reading of the Compensation Act reveals what the legislature intended should be meant by "compensation" payable to an injured workman for which he is required to file claim by Sec. 2899. It means disability indemnity in the form of money payments, and nothing else. Secs. 2949, 2950, 2951 and 2952.

"The right to compensation is purely statutory in its nature, and we must resort to the statute to determine its extent and limitations. * * * Upon a reading and comparison of the various sections of the law, it appears clearly that it gives two independent and distinct benefits for the injured workman, (a) compensation for lost time, and (b) the medical attendance and hospitalization to repair, as far as possible, the injury. As we have seen in a number of cases, and particularly in the Sorenson case [Sorenson v. Six Companies, 53 Ariz. 83, 85 P.2d 980], compensation is payment for the lost time of the injured workman. The award must be on the basis of monthly payments. * * *

"We are of the opinion that the legislature intended to differentiate between compensation which, as we have held, is in lieu of lost wages and belongs solely to the injured employee, with no right of survival to his legal representative after his death, and medical attendance and hospitalization." Paramount Pictures v. Industrial Commission, 56 Ariz. 217,106 P.2d 1024, 1025.

The case of Miller v. Industrial Commission, 106 Colo. 364,105 P.2d 404, was decided under the limitation of the Colorado Act, providing that claims shall be barred unless filed within six months after the injury, or within one year after death resulting therefrom. The Act provides that the limitation shall not apply to any claimant to whom compensation has been paid. Here the workman lived two days after the injury and the insurer paid medical and hospital bills for his care. The court held that payment of the medical and hospital bills under the circumstances did not constitute payment of compensation so as to waive the statutory limitation on the filing of a claim.

The purpose of Sec. 2899 is to notify the board that a compensable injury has been suffered, that compensation will be claimed by the injured workman, and to require that the claim therefor be filed in time to permit an early investigation while the facts are fresh in the minds of available witnesses.

I concede that in the circumstances of this case, the denial of compensation would be unfortunate and would work a hardship upon the injured man. That fact, however, cannot justify this court's assumption of legislative powers. I deem it the duty of the court to give full effect to the legislative enactments applicable, in this case clear. The remedy for unfortunate situations as we find here is with the legislature, not the courts.