                                 NO. 83-61
               IN THE SUPREPU COURT OF THE STATE OF MONTANA
                                        1983



JERRY BOWERMAN,
                          Claimant and Appellant,
   -vs-

EMPLOYMENT SECURITY COMMISSION, Employer,
   and
STATE COMPENSATION INSURANCE FUND,
                          Defendant and Respondent.




APPEAL FROM: Workers' Compensation Court, The Honorable Timothy
             Reardon, Judge presiding.

COUNSEL OF RECORD:
         For Appellant:

               Utick, Grosfield     &   Uda; Norman Grosfield argued,
               Helena, Montana

         For Respondent:

               Wm. Bailey Dunn argued, Helena, Montana




                                 Submitted:     September 16, 1983
                                   Decided:     December 22, 1983




                                 Clerk
Mr. Justice John C.         Sheehy delivered the Opinion of the
Court.


       The single issue presented in this appeal. is whether the
statute           limitations      for     instituting       Workers '
Compensation claim is tolled in the case of a latent injury
during the period that the injury was unknown or unsuspected
by the claimant.     We hold that the statute of limitations is
tolled during that period.
       This is an appeal by the claimant Jerry Fowerman from a
decision of the Workers' Compensation Court that his claim
for compensation is ba-rred by section 39-71.-60l, MCA (1981).
That statute provides:
       "(1)   In cases 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 on 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. "
       Subparagraph (2) of section 39-71-601, was added by the
legislature in 1973      ( 5 1, Ch.      264, Laws of 1973).      This
Court, in dicta, in Williams v.             Wellman-Power   Gas, Inc.
(1977), 174 Mont. 387, 389-390, 571 P.2d 90, 92, stated that
the purpose of the 1973 amendment was to solve the latent
injury problem by granting the Division the authority to
extend the time period. on a reasonable showing of lack of
knowledge of disability.          The employer and the insurer in
this case rely on language of the 1973 enactment and the
dicta in Williams v. Wel-lman-Power Gas, Inc. as an indication
that    the   legislature   has    acted   with   respect   to   latent
iniuries and the courts should permit no further extensions.
     In the facts reported to us in this case, the claimant
Bowerman suffered an industrial injury arising out of and in
the course of his employment in 1976 when he fell into a
stairwell   after    stepping   on   a   pencil.     He    immediately
reported the incident to his supervisor, who recommended that
Bowerman file a report.         However, Bowerman did not file a
claim or report at the time of the accident because he felt
it was not necessary as he was only "shaken up."
     In late 1976, claimant began experiencing headaches.            On
January 7, 1977, he sought treatment from an optometrist who
diagnosed his problem as myopic astigmatism, unrelated to the
1976 injury.     In December 1977, he sought treatment for
shoulder pain and headaches from an orthopedic surgeon who
diagnosed cuff tendonitis.       The same doctor treated claimant
again in 1979.
     About March 1980, claimant's condition worsened to the
point that he concluded that his back pain and headaches were
not going to disappear on their own.               His employer was
informed that his ability to perform on the job was impaired.
On May 25, 1981-, Bowerman terminated his employment for the
sole reason of his health condition.       Coworkers and witnesses
testified that Bowerman did not display symptoms of physical
difficulties until late sprinq 1980.         On December 15, 1980,
Bowerman submitted a claim for Workers' Compensation coverage
to the State Compensation Insurance Fund because of his
disabling physical condition.
     The case was referred to a hearing examiner for the
Division of Workers' Compensation who ruled that the claimant
was precluded from having his claim considered because it was
submitted more      than   three years    after    the    time of   the
accident.   The hearing examiner reasoned that the decision as
to whether the latent injury concept was an exception to the
three year maximum time limit under section 39-71-601, MCA,
properly rested with this Court.
      Bowerman     excepted    to    the   decision   of    the   hearing
officer   .   On April    20,       1982, the administrator of        the
Division issued his order of determination sustaining the
findings and conclusion of the hearing officer.              Thereafter
Bowerman appealed to the Workers' Compensation Court.               That
court determined that the claim had been filed too late under
the   applicable statute of          limitations.     It is from the
decision of the Workers' Compensation Court that the matter
comes on appeal to this Court.
      In general, Bowerman's contentions are that the time
period for Workers' Compensation claims should not run until
the claimant has been reasonably apprised of the seriousness
and compensable character of his injury.            He further contends
that although section 39-71-601, MCA, is an "accident" type
of statute in that the clock. runs from the time of the
accident rather than the time of the injury, this is not an
insuperable obstacle to judicial achievement of a more humane
rule under libera,-construction.            Bowerman also argues that
the addition of subsection (2) to section 39-71-601, MCA, by
the 1-egislature should not he taken to indicate an intent by
the legislature to preclude any other application of the
latent injury rule.
      Respondent    contends        that   the   language   of    section
39-71-601, is plain and that there is an absolute prohibition
of all claims after a maximum of three years.                Respondent
also contends that by enacting an "accident" statute, the
legislature carefully chose to limit actions from the date of
the accident rather than from the manifestation of the injury
and that the 1973 amendment to section 39-71-601 in enacting
subsection (2) is a specific and exclusive codification by
the legislature of the latent injury principle.
     We have held   that section    39-71-601., MCA, does not
exclude all late-filed. claims.   In Frost v. Anaconda Company
(Mont. 1982), 645 P.2d 419, 39 St.Rep. 879, and in Jaeger v.
Stauffer Chemical Company   (Mont. 1982), 645 P.2d. 942, 39
St.Rep. 919, it was he1.d that the statutory period could be
tolled for equitable reasons where the injured worker was
paid by his employer sums equivalent to Workers1 Compensation
benefits which   in effect lulled the injured worker       into
failure to timely file for Workers' Compensation.
     The Workers' Compensation Court noted that in 3 Larson,
Workmen's Compensation Law, S S    78.40, at 15-155, et seq.
(1983), the author argues for an interpretation of the time
period for notice of claim to be tolled until the claimant as
a reasonable man should recognize the nature, seriousness and
probable, compensable character of his injury or disease.
Larson says:
    "It is odd indeed to find, in a supposedly
    beneficent piece of legislation, the survival of
    this fragment of irrational cruelty surpassing the
    most technical forfeitures of legal statutes of
    limitation.     Statutes of limitation generally
    proceed on the theory that a man forfeits his
    rights only when he inexcusably delays assertion of
    them, and any number of excuses will toll the
    running of the period.     But here no amount of
    vigilance is of any help. The limitations period
    runs against a claim that has not yet matured; and
    when it matures, it is already barred..         . ."
    Larson, supra, S 78.4?(S), at 15-225.
     In Johnson v. St. Patri.ckls Hospital (1966), 148 Mont.
1-25, 417 P.2d 469, this Court by judicial decision did not
follow the literal language of the statute of limitations,
but adopted the rule in a medical. malpractice case that where
a foreign object is neglj-gently left in a patient's body and
the pa.tient is ignorant of the fact, his time for filing
action does not begin until the patient learns of or in the
exercise of reasonable care and diligence should have learned
of the presence of the foreign object in his body.                In that
case the dissenting justice contended that it was a matter
for the legislature to determine.            The legislature did in
fact subsequently enact such a provision in 1971 (section
27-2-205, MCA)   .
     It    is   not     exclusively    evident    that    in     enacting
subsection ( 2 ) of section 39-71.-601, MCA, the legislature was
acting only with respect to latent injuries unsuspected by
the claimant.        The language of subsection (2) is broad and
could encompass any number of situations where in equity the
Division would be moved to extend the time for filing the
notice of claim up to the 24 months provided.                   We would
prefer a specific enactment by the legislature of a statute
of limitations relating to latent injury claims.               The course
taken by this Court in medical malpractice claims in Johnson
v. St. Patrick's Hospital, supra, had the effect of prodding
the legislature into providing expressly for an extended
period of 1imi.ta.tions where the nec~ligence of the treating
physician or hospital was not discovered by               the patient
within    the   time    allowed   by   the   applicable    statute    of
limitations.     The logic expressed by Larson in his position
that latent injuries should not be barred by the statute of
limitations until the statutory period has run from the time
of dscovery is unassailable, and appeals to this Court whose
duty is to interpret liberally the provisions of the Workers'
Compensation Act.         We   therefore     determine   that     section
39-71-601, MCA, should be interpreted, in cases of latent
injury, so 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.
     Accordingly, the decision of the Workers' Compensation
Court is reversed and this cause is remanded to the Workers'
Compensation Court for further proceedings, either before the
Court or Division, except that section 39-71-601, MCA, shall
not be considered a bar to Bowerman's claim.
     The Workers' Compensation Court did not decide in this
case whether Bowerman in fact su.stained a compensable cla.im.
It was not necessary for the Workers' Compensation Court to
reach that decision because of its interpretation of the
statute of 1-imitations question.    \ i e likewise express no
                                      fl
opinion as to the compensahility of Bowerman's injury.




We Concur:


  ?i-d   JM
   Chief Justice



C     A      B       a%--%?--
                     -




          Justices
The Hon. Diane G. Barz, District JuZge, dissenting:

       I respectfully dissent from the majority opinion because
I believe the result reached therein is contrary to the clear
legislative      enactment.       Prior    to    1973,   any   claim    not
presented within twelve months from the date of the happening
of the accident was barred.           In 1973, the legislature enacted
subsection      (2)   as   follows:       "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. "
       The    1973    emendment       strongly    suggests     that     the
legislature was attempting to deal with the latent-injury
problem.      Recognizing that subsection (1) made no allowance
in cases where a claimant was unaware that he had suffered a
disability, the legislature, by the enactment of subsection
(2), specified that a claimant who lacked knowledge of his
disability could he granted an a2ditional 24 months in which
to present a claim.
       As a consequence of the maiority' s holding, subsection
(2) is rendered meaningless.            Forthwith, the Division may,
upon    a    reasonable    showing by      the   claimant of     lack   of
knowledge of disability, waive the time requirement for an
unlimited period of time.         Such a result is inconsistent with
the plain meaning of the statute.
       I have no quarrel with the assertion that the Workers'
Compensation Act is to be liberally construed in favor of the
injured worker.        However, the majority's construction runs
contrary to the express limitation of the statute.
       The restraint exercised. by the Supreme Court of our
sister state, Wyoming, in the face of an undesirable result,
is noteworthy in that it reminds us that our function as
jurists is to interpret, and not to enact.                 In State ex rel.
Director, Workers '           Compensation Division v. Wyo-Dak            (Wyo.
1979),    5 8 9 P.2d   835,     an injured worker's claim was denied
because     the   filing        time   had    expired,    even   though    the
disability was of a type that he could have no knowledge of
until after the statute of limitations had run.                     Justice
Rose, specially con-curring, observed:                   "I agree with the
result and reasoning of this decision, but I feel compel-led
to emphasize that I do so because I am not permitted, under
the pretense of statutory interpretation, to rewrite a clear
legislative enactment."           Wyo-Dak, 5 8 9 P.2d a.t 839.      Recause
the statute was clear in meaning, the Court could not apply
rules of construction--liberal or otherwise.
     The     legislation. dealt with by            the Wyoming Court in
Wyo-Dak was recognized as being particularly unfair, and the
sane recognition might be made of our own statute, which
permits waiver of the time limit only up to an additional 24
months.     Regardless, the legislature has spoken to the issue,
and this Court should not auestion its wisdom in so doing.
     Accordingly, I would affirm the decision of the Workers'
Compensation Court.




                                             Hoh. Diane G. Barz,
                                             District Judge, sitting for
                                                                                      ,
                                                                                  \


                                             Mr. Justice Frank B. Morrison
                                                                                      I
1 join in the foregoing dissent of Judge d z :                               .. 1
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