Bennett v. Bennett , 196 Mont. 22 ( 1981 )

MR. JUSTICE HARRISON

delivered the opinion of the Court.

This appeal is from a denial of benefits from the decision of the Workers’ Compensation Court.

Five issues are raised in this appeal:

1. If the Division of Workers’ Compensation has not published rules governing the time and method of electing coverage for members of an employer’s family dwelling in the employer’s household, is the Division precluded from denying benefits to Robert Bennett on the basis that no election was made to cover him?

2. Is the State fund equitably estopped from denying coverage?

3. Does section 39-71-401, MCA, violate due process because employers are not instructed on how to elect family coverage?

4. Does the family member exclusion deny equal protection?

5. Should appellant be awarded increased compensation for unreasonable delay or refusal to pay pursuant to section 39-71-2907, MCA?

We reverse.

The facts are agreed upon by both sides. Hugh Bennett established Bennett Well Service in Cut Bank, Montana, in September 1975. On September 28, 1975, an employee of the State Fund ordered that compensation enrollment forms for Bennett Well Service be sent to Bennett’s attorney and also to his accountant in Cut Bank. These forms were sent with a letter explaining the special endorsements required for employees not required to be covered by workers’ compensation insurance. The enrollment forms, together with Bennett’s special election to cover himself as a sole employer, were received by the State Fund on October 3, 1975.

In June 1979 the appellant, Robert Bennett, a high school student who still resided in his father’s home, began to work for his father at Bennett Well Service. On June 26 he fractured his leg while working. A first report of the injury was filed on July 2, 1979. On July 13, 1979, Hugh Bennett elected coverage for Robert and on July 31, which was the end of the first quarter of 1979 in which Robert had been employed, Bennett Well Service sent its quarterly reports and premiums, including a premium for Robert to the State Fund. All premiums, including that for Robert, were accepted. The State Fund denied coverage at a later date because the election had been made after the injury.

In this case Bennett Well Service followed the proper procedures by submitting a quarterly report to the Division at the end of each quarter. There was no showing to the corporation or its agents that there was a different reporting method for a family member residing in the employer’s household.

In refusing to grant appellant’s request for coverage the State Fund denied the claim on the basis of the fact that Bern nett Well Service had not elected compensation for Robert under the provisions of section 39-71-401(2)(c), MCA, which states:

“Employments covered and employments exempted. (1) Except as provided in subsection (2) of this section, the Workers’ Compensation Act applies to all employers as defined in 39-71-117 and to all employees as defined in 39-71-118. An employer who has any employee in service under any appointment or contract of hire, expressed or implied, oral or written, shall elect to be bound by the provisions of compensation plan No. 1, 2, or 3. Every employee whose employer is bound by the Workers’ Compensation Act is subject to and bound by the compensation plan that has been elected by the employer.

“(2) Unless the employer elects coverage for these employments under this chapter and an insurer allows such an election, the Workers’ Compensation Act does not apply to any of the following employments:

it

“(c) employment of members of an employer’s family dwelling in the employer’s household;”

The first and controlling issue in this cause is whether the Division of Workers’ Compensation failed to publish rules governing the time and method of electing coverage for members of an employer’s family dwelling in the employer’s household. If rules were not published, can the Division deny benefits on the basis that no election was made to cover the claimant?

The court found in its Finding of Fact No. 22, that, “the Division of Workers’ Compensation has published rules concerning the way that the employer may elect to bring his employees within the provisions of 39-71-401”.

It is important to consider when the Division is notified of an employer’s new employees. First, the Division sends the employer a list of premiums for each job classification. Then, the employer prepares his quarterly report to the Division, setting forth the names of the employees, the amount paid to the employees, and the type of work done by the employees. A check for the premiums and the quarterly report, are filed at the end of the quarter.

This is precisely what the employer, Hugh Bennett, did in this case for all of his employees, including his son, Robert Bennett. The quarterly report was filed at the end of the quarter, July 31, 1979, as usual.

The June 26,1979, injury was reported to the Division on July 2,1979, and an election of coverage for the employer’s family members dwelling in the employer’s household was filed on July 10, 1979.

The Division argues that Robert Bennett was not covered on June 26, 1979, because (1) the employer did not elect coverage until July 10, 1979, and (2) Robert Bennett worked the summer of 1978 without coverage. But, Robert Bennett testified that he would not have gone to work without workers’ compensation coverage. Large placards at his work place told him all employees were covered.

Respondent argues that the claimant should not be allowed to be insured ex post facto; that the Division did prescribe procedures for employees to elect coverage; and that the employer received forms and a letter clearly explaining that some employees were not covered unless special endorsements forms were completed prior to an injury.

The employer had endorsed the same form to be covered, so he was obviously familiar with the procedure. The payroll reports sent to the employer every three months also contained this reminder:

“10. OTHER ENDORSEMENTS: Unless specific endorsements have been made, the following types of employment are not covered:

“1. Members of the employer’s immediate family (wife, husband, son or daughter) dwelling in the employer’s household.

“Include family members or household employees where specific endorsements are on file.

“or

“10. OTHER COVERED ENDORSEMENTS: Include family members or household employees where specific endorsement forms are on file.” (Emphasis added.)

Respondent argues that since the employer personally endorsed one of these forms and received notice every three months, the employer received adequate notice. Thus, the Division’s duty to publish rules notifying employers of the election procedure pursuant to section 39-71-2303, MCA, was complete.

Section 39-71-203, MCA, gives the Division authority to “perform any and all things . . . which are necessary” to administer the Workers’ Compensation Act. Section 39-71-2303, MCA, orders the Division to “prescribe the procedure by which the employers may elect to be bound by compensation plan No. 3, including the effective time of such election . . .” The Division failed to prescribe the proper procedure or rules other than reporting and paying procedures above. Therefore, Finding of Fact No. 22 by the Workers’ Compensation Court is incorrect and unsupported by the evidence. The court obviously was misled. Hugh Bennett did exactly as instructed by the Division in following precisely the reporting and premium payment procedures outlined by the Division to provide coverage for his employees. The record shows that he notified the Division of (1) the accident; (2) a week or ten days later he elected to come under the plan; and (3) that he paid the necessary premium to cover for that period.

The Division does not have rules informing plan 3 members of the time and method of electing coverage for members of an employer’s family dwelling in the employer’s household. Therefore, we reverse the Workers’ Compensation Court and order the claim approved. The appellant’s request for increased compensation pursuant to section 39-71-2907, MCA, is denied.

MR. JUSTICES DALY, SHEA, SHEEHY and MORRISON concur.