                                  No. 86-496
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1987



GEORGE SCHMIDT,
                 Claimant and Appellant,
         -vs-
PROCTOR   &   GAMBLE, Employer,
         and
HOME INSURANCE COMPANY,
                 Defendant and Respondent.



APPEAL FROM:      The Workers' Compensation Court, The Honorable
                  Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                 Thueson Law Office; Erik B. Thueson, Great Falls,
                 Montana
         For Respondent:
                  Marra, Wenz, Johnson   &   Hopkins; Thomas A. Marra,
                  Great Falls, Montana


                                     Submitted on Briefs: March 5, 1987
                                       Decided:     June 3, 1987
          JUN 3- lggt
Filed:
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

       Claimant appeals an order of the Workers ' Compensation
Court denying him benefits because he did not file his claim
within one year as required by § 39-71-601, MCA. We affirm.
       Claimant George Schmidt was hired by Proctor and Gamble
in March 1984, as a part-time merchandiser to service stores
in western Montana which carry its products.       He assisted
salesmen in specific markets by building displays, resetting
shelving in stores, checking prices and putting up sale
material. Schmidt had held a number of jobs before this one,
including assistant operator for Montana Power Company,
salesman for Sears, sales and light delivery for Modern
Equipment Company and Eklund Television and Appliance. Since
May 1981 he was in the insurance business, except for the
period of approximately eight months between March 1984 and
December 1985, when he worked for Proctor and Gamble.
       Schmidt claims he injured his back July 16, 1984, while
restocking shelves in the Inland Market in Kalispell,
Montana. One leg of the display case fell toward him and he
had to catch it abruptly. The falling boxes did not knock
him over, but in holding up the shelf he experienced a sudden
pain in his lower back. There were several unnamed witnesses
to this incident who were in the general area of the store at
the time.    Schmidt listed one Shirley Diaz as a witness in
the pretrial order but she was not called to testify at
trial.     Schmidt made no report of the incident to his
employer, although he told his wife, who was in the store at
the time it happened.
      A year later the Schmidts traveled from Great Falls by
automobile to visit their children in Utah. Two days before
leaving, Schmidt had helped his son change a tire.          In
Pocatello, Idaho, he experienced such severe pain in his
lower back his wife drove him to the Pocatello Regional
Medical Center emergency room. He told the emergency room
staff he pulled his back while changing a tire. He did not
mention the accident the previous July, nor did he tell the
doctor of any previous back problems. He was put in traction
and given medication for several days.
      After he returned to Great Falls, Schmidt was seen by
Dr. Alexander Johnson, a neurosurgeon.       Schmidt did not
inform Dr. Johnson of the incident at Inland Market. Schmidt
also was examined by Dr. Thomas Power, an orthopedic surgeon.
Apparently Dr. Power was not informed of the tire changing
incident.      Schmidt, however, had told Power he had
experienced back problems for more than twenty years which
developed into pain in his left buttock and leg in early July
1985.
      Prior to undergoing surgery in August 1985, Schmidt
notified Drs. Johnson and Power he had applied for veterans'
pension   benefits, workers'     compensation benefits    and
Medicaid.    The claim for workers' compensation     benefits
filed August 18, 1985, more than one year after the incident
in Kalispell, was denied.    Schmidt then petitioned for an
emergency hearing and a trial was held. Schmidt appeals the
resulting judgment denying him benefits.
      We   are    asked to   decide whether the Workers'
Compensation Court abused its discretion in denial of
benefits to Schmidt because he failed to file notice of the
accident claimed to have caused the injury.
           Our function in reviewing a decision of
           the Workers' Compensation Court is to
           determine whether there is substantial
           evidence to support the findings and
           conclusions of that court.      We cannot
           substitute our judgment for that of the
           trial court as to the weight of the
           evidence on questions of fact.      Where
           there is substantial evidence to support
           the findings of the Workers' Compensation
           Court, this Court cannot overturn the
           decision. [Citations omitted.]
Sharp v. Hoerner Waldorf Corp.   (19781, 178 Monte 419, 423,
584 P.2d 1298, 1300. After carefully reviewing the record,
we defer to the findings of the Workers' Compensation Court.
      Schmidt testified he was injured July 16, 1984. The
only named witness to the accident was not called to testify.
Schmidt testified he       notified his    supervisor, Bruce
Hammerman, of the incident the next day by telephone.
Hammerman denied any call took place, and testified, with
documentation, he was in Los Angeles the day the call
supposedly was made.    Schmidt produced no records from the
telephone company showing the call was made.
      At the end of each week, Schmidt was required to fill
out in triplicate "Part-Time Merchandiser Expense Reports,"
showing date worked, cities and stores traveled to, monetary
allowance, etc. One copy was sent to the home office, one to
Hammerman, and Schmidt kept a copy. The home office copy and
Schmidt's copy were offered into evidence.      Schmidt's copy
had the words "hurt back Inland Market" penciled on it;
however the home office copy did not.     Hammerman testified
his copy did not have those words on it.
      The Workers' Compensation Court did not find that
either of these incidents constituted notice to the employer
pursuant to § 39-71-601 or § 39-71-603, MCA, nor do we.
      Section 39-71-601, MCA, states:
           Statute of limitation on presentment of a
           claim -- waiver. (1) In case of personal
           injury or death, all claims shall be
           forever barred     unless   presented   in
           writing to the employer, the insurer, or
           the division, as the case may be, within
           12 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.
            (2) The division may, upon a reasonable
           showing by the claimant of lack of
           knowledge of disability, waive the time
           requirement up to an additional 24
           months.
       Our case law on the exceptions noted in subsection (2)
involve waiver, estoppel and laches on the part of the
parties. We find here that there is no waiver, estoppel or
laches on the part of the employer; rather the employee
failed to convince the Workers1 Compensation Court that he
gave his employer proper notice.      In Devlin v. Galusha,
Higgins & Galusha (1982), 202 Mont. 134, 655 P.2d 979, we
held that there is no duty of an employer to solicit a claim
where an employee who injured herself informed the supervisor
that she did not wish to file a compensation claim, but
subsequently did.    In that case the Workers' Compensation
Court found that the claim was barred by the twelve month
statute of limitations, thus, there were no grounds upon
which to hold that the employer and insurer could be estopped
from raising the statute of limitations.          As to the
equitable estoppel theory see Bagely v. Hotel Florence Co.
 (1974), 165 Mont. 145, 526 P.2d 1372; and Ricks v. Teslow
Consolidated (1973) 162 Mont. 469, 512 P.2d 1304.
       We held where the claimant for compensation did not
file his claim within the time required by § 39-71-601, MCA,
the defendant employer was not required to file an answer or
state a defense orally before the Industrial Accident Board
(now the Division of Workers' Compensation). Claimant's
assertion that because of such failure the employer waived
its rights to make a defense was without merit. Williams v.
Anaconda Copper Co. (1934), 96 Mont. 204, 29 P.2d 649.
       We   have  long held    the notice requirement of
§ 39-71-603, MCA, ''is mandatory and compliance with its
requirements is indispensable to maintain a claim for
compensation." Maki v. Anaconda Copper Mining Co. (1930), 87
Mont. 314, 323, 287 P. 170, 173; Hunt v. Sherwin Williams
(Mont. 1981), 624 P.2d 489, 492, 38 St.Rep. 358, 361.
      Schmidt argues Proctor and Gamble waived this statutory
limitation by representations giving rise to equitable
estoppel.    Lindblom v. Employers Liability Assurance Co.
(1930), 88 Mont. 488, 494, 295 P. 1007, 1009. We set out the
elements of equitable estoppel in Lindblom:
           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. 3. The truth
           concerning these facts must be unknown to
           the other party claiming the benefit of
           the estoppel, at the time when it was
           acted upon by him. 4. The conduct must
           be done with the intention, or at least
           with the expectation, that it will be
           acted upon by the other party, or under
           such circumstances that it is both
           natural and probable that it will be so
           acted upon. * * * 5. The conduct must be
           relied upon by the other party, and, thus
           relying, he must be led to act upon
           it. 6. He must in fact act upon it in
           such a manner as to change his position
           for the worse; in other words, he must so
           act that he would suffer a loss if he
           were compelled to surrender or forego or
           alter what he has done by reason of the
           first party being permitted to repudiate
           his   conduct   and   to  assert   rights
           inconsistent with it.
88 Mont. at 494-495, 295 P. at 1009.
      Questions of estoppel can arise in various ways through
actions of the employer.    The employee can be lulled into
inaction. Wassberg v. Anaconda Copper Co. (Mont. 1985) , 697
P.2d 909, 916, 42 St.Rep. 388, 395, citing Mc~askle v.
Industrial Com'n of Arizona (Ariz. 1982), 659 P.2d 1313,
1316.   The employer can take positive action which either
prevents a claimant from filing a timely claim or leads him
reasonably to believe he does not need to file a claim
 [citing cases]. Wassberg, supra at 916, 42 St.Rep. at 396,
citing Davis v. Jones (Mont. 1983), 661 P.2d 859, 860, 40
St.Rep. 570, 571-572.
       There is no support for Schmidt's claim.    The record
does not show Proctor and Gamble discouraged or in anyway
influenced Schmidt from filing a claim. An employer has no
affirmative duty to inform the claimant of the right to file
a claim.    The duty to act is on the employee.     Wassberg,
supra at 916, 42 St.Rep. at 396. We do not find that the
first element of equitable estoppel, set out in Lindbolm,
supra, is met.     Nor is Schmidt's contention he notified
Hammerman by way of a phone call and on the Merchandizer
Expense Report supported by the record.
       Schmidt claims even if the Workers' Compensation Court
did not accept his statement of facts, his claim for
compensation nevertheless was timely filed because his injury
was a latent injury and the statute of limitations is not
relevant.    Section 39-71-601 (2), MCA, says, "The division
may, upon reasonable showing by the claimant of lack of
knowledge of disability, waive the time requirement up to an
additional 24 months."
       The record does not show that Schmidt was without
symptoms of the claimed accident in July 1984. We have said
"that the time period for notice of claim does not begin to
run until the claimant, as a reasonable man, should recognize
the nature, seriousness, and probable compensable character
of his latent injury."      Bowerman v. Employment Security
Commission (Mont. 1983), 673 P.2d 476, 479, 40 St.Rep. 2062,
2065.    There is no evidence Schmidt was unaware of his
disability. He testified he felt a sharp pain in his back at
the time of the July 14, 1984 incident and continued to have
back problems through July 1985. He testified he purchased a
back brace in August 1 9 8 4 to help him sleep. He testified he
had leg pains in October and November 1 9 8 4 . Yet he did not
seek any medical attention during this time, as would a
reasonable man under such circumstances. There is no credible
evidence Schmidt lacked knowledge of the nature, seriousness,
and probable compensable character of a latent injury.
      We find the medical testimony offered to show gradual
development of a herniated disc is not relevant to
corroborate the existence of an industrial accident. It goes
only to show the medical condition of Schmidt's back. The
issue of a compensable injury is not before this Court,
because clearly Schmidt did not notify his employer of an
accident within the statutory time.
      The order of the Workerst Compensation Court is
affirmed.




We concur:      _-H
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