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No. 12576
IN THE SUPREME COURT OF THE STATE OF MONTANA
1974
CLARA S. BAGLEN,
Claimant and Appellant,
HOTEL FLORENCE COMPANY, Employer and HOME INDEMNITY COMPANY,
Def endantS and RespondentS

Appeal from: District Court of the Fourth Judicial District, Honorable E. Gardner Brownlee, Judge presiding
Counsel of ~ecord:
For Appellant :
Tipp and Hoven, Missoula, Montana Vernon Hoven argued and Douglas G. Skjelset argued, Missoula , Montana
For Respondent :
Garlington, Lohn and Robinson, Missoula , Montana Sherman V. Lohn appeared and Robert E. Sheridan, Jr. argued, Missoula , Montana
Submitted: September 11, 1974
Decided : QCt 8 1974
Mr. Justice Wesley Castles delivered the Opinion of the Court.

This is an appeal from an order of the district court
of the fourth judicial district, in and for the County of Missoula,
reversing an order of the Workmen's Compensation Division which
had awarded compensation to claimant Clara Bagley from her em-
ployer Hotel Florence Company.

On June 27, 1968, Clara Bagley (hereinafter referred to
as claimant) fell while working in the basement of the Florence
Hotel Motor Inn. Shortly thereafter, claimant went to the office
and reported to Dorothy Adamson, a secretary of the Hotel, that
she had fallen. As an employee of the hotel, Mrs. Adamson was
the person who had the responsibility for filing of workmen's
compensation claims. Since the conversations which took place
between claimant and Mrs. Adamson are crucial to a proper deter-
mination of this matter, and particularly the issue of equitable
estoppel, they are set forth in some detail. The transcript of
the proceedings before the hearingsexaminer for the Workmen's
Compensation Division shows the following:

"Q. After you told her you had fallen, did
you tell her whether or not you were going to
consult with a doctor for any injury you received?

A. No.

"Q. Did you in any way indicate to her you had
been injured as a result of the fall? A. No,
I said I was shook up, but that's all.

"Q. You said nothing to alert her to the fact
you were going to require medical attention as
a result of this fall at that particular time?

A. No.

"Q. Did Mrs. Adamson in any way that you can recall attempt to dissuade you or prevent you from filing a claim for compensation? A. No, she thanked me for reporting it * * *."
The testimony of Mrs. Adamson during cross-examination by

Nr. Sheridan was in accord:

"Q. On June 27, 1968, which was the day Mrs. Bagley

fell at the hotel, you had a conversation with

her, did you not? A. Yes.
"Q. She advised you she had slipped and fallen
in the basement? A. Yes.

"Q. Did you inquire of her at that time as to
whether or not she had been injured, or whether or
not she was going to seek medical attention? A.
I asked her if she was hurt and she said she was
not hue just shook up.

"Q. Did she advise you whether she was going to
seek medical attention at that time? A. I don't
think so.

"Q. Were you aware that she sought medical atten-
tion at that time? A. No."
Claimant admitted on direct examination that she did not
seek medical help at that time.
In February 1969, claimant experienced difficulties with
her back. She consulted with Dr. W. E. Swartz of Missoula and
was hospitalized from February 11 to February 14, 1969. Even
though claimant went to see Dr. Swartz about her back in February
1969, she never advised Mrs. Adamson of this fact. When she was
hospitalized by Dr. Swartz she advised Mrs. Adamson she was off
work because of hospitalization without relating it in any way to
the fall. Claimant continued to work for the Florence Hotel until
December, 197 0.
Claimant did not talk to Mrs. Adamson about the fall again
until May, 1971, when Mrs. Adamson and the hotel were notified
that claimant was alleging injury as a result of the fall on June
27, 1968. Claimant filed a claim with the Workmen's Compensation
Division on September 27, 1971.
Despite the foregoing testimony, the hearings examiner
for the Workmen's Compensation Division made the following finding

of fact:
"6. That the claimant did report this incident
to Mrs. Dorothy M. Adamson in person on the date
of the accident but Mrs. Adamson failed to fill
out a form 37, Employer's First Report of Injury

or to inform the claimant that she must file a

claim form 54 within a year from that date.

This constitutes the type of equitable estoppel

contemplated by the cases to breach the defense

of failure to file a claim within a year under

92-601. I'

It was this finding of conduct amounting to an equitable
estoppel which was subsequently reversed by the district court.
In accordance with the district court reversal, the administrator
of the Workmen's Compensation Division issued an order dated
July 20, 1973, denying compensation benefits to claimant.

On appeal to the district court, it was stipulated "That
the issue is whether the record supports the finding of the Indus-
trial Accident Board of an equitable estoppel, inasmuch as the
Claimant did not file the claim for the benefits within one (1)
years." We hold,as the district court did, that the record does
not support a finding of equitable estoppel and that claimant's
claim is barred for failure to file it within one year as required
by section 92-601, R.C.M. 1947.

The findings of fact submitted by the hearings officer for
the Workmen's Compensation Division determined that the hotel was
estopped to assert section 92-601, R.C.M. 1947, as a bar to the
claim because of the conduct of Mrs. Adamson. It is of critical
importance in this case to note that Mrs. Adamson did not know on
the date of the accident, or at any time during the next three
years, that claimant was alleging any injury as a result of her
fall. On the contrary, claimant advised her that she was not in-
jured and would not be seeking medical attention. In light of
these facts it is inconceivable that Mrs. Adamson, as a representa-
tive of the employer, should be required to solicit a claim for
compensation from the claimant. Ricks v. Teslow Consolidated, 162
Mont. 469, 512 P.2d 1304, 1312, 30 St.Rep. 790.

The leading case in Montana on the issue of equitable
estoppel in compensation claims is Lindblom v. Employers1 Etc.

Assur. Corp., 88 Mont. 488, 494, 295 P. 1007. In that case

this Court stated:

"Generally speaking, the following are the es- sential elements which must enter into and form a part of an equitable estoppel in all of its applications: '1. There must be conduct--acts, language, or silence--amounting to a representation or a concealment of material facts. 2. These facts must be known to the party estopped at the time of his said conduct, or at least the circumstances must be such that knowledge of them is necessarily imputed to him. * * *.,I"
The alleged conduct constituting the estoppel was that

Mrs. Adamson failed to fill out a form 37, Employer's ~irst Re-
port of Injury or to inform the claimant that she must file a

claim form 54 within a year from that date. It must be remembered

that there was no indication given to Mrs. Adamson or the Florence

Hotel that claimant had suffered any injury. The "material fact"

-
in this case was that claimant, not some hypothetical injured person, had to file a claim. Although Mrs. Adamson and the Hotel Company knew, in the abstract, that forms 37 and 54 had to be filed in the event of an injury, that fact could not become a "material fact", subject to misrepresentation or concealment, until the Hotel Company or Mrs. Adamson had notice that claimant had in fact suffered an injury.
In order to estop the employer from claiming the benefit
of section 92-601, R.C.M. 1947, there must be evidence that the
employer or his agent had done something either to lead the employee
reasonably to believe he need not file a claim or has engaged in
conduct which discouraged or prevented the employee from filing
a claim within the statutory time limit. Levo v. Gen.-Shea-
Morrison, 128 Mont. 570, 280 P.2d 1086; Ricks v. Teslow Consolidated,
supra. In this case the record is devoid of evidence to support
either contention. Claimant admits she was not prevented or dis-
couraged from filing a claim. Similarly, claimant was never mislead

into believing that the matter would be taken care of. The
district court properly ruled that the evidence before the Work-
men's Compensation Division did not support a finding of equit-
able estoppel on the basis of Mrs. Adamson's conduct.

Counsel for claimant also attempts to argue that the in-
juries to claimant were latent in nature and justify the failure
to file a written claim for more than three years following the
accident. However, this issue was never raised at the hearing
before the Workmen's Compensation Division and was not ruled upon
by either the Workmen's Compensation Division or the district
court. The "latent injury" theory as an exception to the one
year time limit for filing of claims is only now brought before
this Court following the district court reversal of a finding of
equitable estoppel. This Court has stated before in Spencer v.
Robertson, 151 Mont. 507, 511, 445 P.2d 48:

" * * * Upon appeal, this Court will consider for review only those questions raised in the trial court."
Claimant attempts to argue that the "latent injury" issue was-raised at the hearing before the Workmen's Compensation Divi- sion when claimant's counsel stated: " * * * Our testimony will go to the invocation of the doctrine of estoppel." Claimant argues "Latent injury is another form of estoppel or equitable estoppel" and " * * * by its very nature, a finding of a latent injury acts as an estoppel against the employer."
Whether or not claimant had any latent injury is entirely
irrelevant to a finding of estoppel. An estoppel arises when a
party by his acts, conduct, or acquiescence has caused another in
good faith to change his position for the worse. Mundt v. Mallon,
106 Mont. 242, 249, 76 P.2d 326. An estoppel has reference to the
conduct of the person estopped. Whether claimant had a latent in-
jury has nothing to do with the conduct of Mrs. Adamson or the

Florence Hotel. We note that even had the "latent injurynissue L./
been before the Workmen's Compensation Division or the district
court, the exception would not be applicable here. Claimant
experienced back problems eight to nine months after her fall
and yet she did nothing to report the injury to her employer or
to file a written claim. Claimant admitted in her written claim
that she was first treated for this injury on February 2, 1969
by Dr. Swartz. Yet it was more than two and one-half years after
discovering her back problems that she attempted to associate the
back problem and the fall by filing a written claim. Even if the
"latent injury" theory was applied here, the written claim still
was not filed within one year after the injury was discovered.

Neither did the hearinsexaminer's finding of fact No. 5
establish any latent injury.
Accordingly, finding no error, the decision of the district
court is affirmed.

,J
We concur: B
r
Chief Justice

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