                               No. 89-101
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1989



HERBERT A. DODD, SR.,
                claimant and Appellant,
       -VS-

CHAMPION INTERNATIONAL CORPORATION,
                Employer and Defendant.




APPEAL FROM:    The Workers compensation Court, The Honorable
                ~imothyReardon, Judge presiding.

COUNSEL OF RECORD:
       For Appellant:
                Roger M. Sullivan; McGarvey, ~eberling,Sullivan       &
                McGarvey, ~alispell, Montana
       For Respondent:
                Paul C. Meismer; Garlington, Lohn   &   ~obinson, iss sou la,
                Montana



                                   Submitted on Briefs:     June 30, 1989
                                     Decided: September 20, 1989
                                          .
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.




     We reverse the Workers' Compensation Court which upheld
the decision of the Workers' Compensation Division that
denied the request of Herbert A. Dodd, Sr., to extend his
time for filing a Workers' Compensation claim pursuant to S
39-71-601 ( 2 ) , MCA.
     We glean the following facts from the findings made by
the hearing examiner when this cause was before the Workers'
Compensation Division.
     Herbert A. Dodd, Sr. filed a claim for compensation on
September 24, 1987, listing his dates of injuries as January,
February, March and April of 1986. He began his employment
with the defendant employer on January 7, 1977, and ended
with a medical leave by his employer on June 6, 1986. For
several years prior to 1986 he had suffered from arthritis.
Medical   reports have   substantiated  the diagnosis of
arthritis. During the spring of 1986 he suffered increased
pain in his back, hands, and ankle and received treatment
from Dr. Hufman.
     On May 13, 1986, the employer requested another
examination and the completion of a Health Assessment
Physical Activity Evaluation form. The form was filled out
by Dr. Hufman, and indicated a number of restrictions placed
on the working ability of Dodd. c is difficulties were the
result of arthritis of the back, hands, and ankles.
     On June 11, 1986, Dodd went to the employer's personnel
office to apply for benefits. He received a claim form from
the personnel officer which would provide payments from the
health and welfare fund of the Timber Operator's Council
(TOC) rather than a claim for workers' compensation form.
Eventually benefits were paid for the maximum length of time
(26 weeks) from the TOC health and welfare fund.
     The claimant's deposition indicated to the hearing
examiner that Dodd was aware of his osteoarthritic condition
for many years prior to the filing of the claim for
compensation. On the TOC form he stated he had not filed for
Workers' Compensation and did not intend to file. On that
basis the hearings examiner determined that Dodd's deposition
reflects his knowledge of the difference between filing for
TOC or for Workers' Compensation.    Dodd also testified in
that deposition that he had been under a doctor's care for a
long time and "for all I knew, it was an illness."       The
hearings examiner also found that Marilee Brown, the
personnel clerk for Champion International, did not have a
specific recollection of conversations with Dodd "about this
particular incident."
     Based upon the foregoing findings of fact, the hearings
examiner proposed as a conclusion of law that under 5
39-71-601, MCA, Dodd was not entitled to a waiver of the
12-month requirement for filing his compensation claim for up
to an additional 24 months, on the ground that he had failed
to show that he lacked knowledge of a disability.
     On June 27, 1988, the Workers' Compensation Division,
through its administrator, Robert J. ~obinson, adopted the
findings and conclusions of the hearings examiner and ordered
that since Herbert A. Dodd had failed to show he lacked
knowledge of his disability, his request to waive the claim
filing requirement of 5 39-71-601, MCA, was denied.
     This Court has had to determine the legal effect of S
39-71-601, MCA, on several occasions, and particularly its
subdivision ( 2 ) which was enacted by the legislature in 1973.
That   subdivision   extended   to   the   Workers'   Compensation
~ivisionthe power to waive the time for filing a claim for
Workers' compensation up to an additional 24 months.      In
~illiams v. Wellman-Power Gas, Inc. (1977), 174 Mont. 387,
389, 571 P.2d 90, 92, we noted that the amendment was passed
to alleviate a condition that was directly contrary to the
stated purposes and policy of the Workers' Compensation Act,
because prior to July 1, 1973, the worker was required to
file a claim within 12 months of the date of the accident
regardless of the circumstances, or be denied compensation.
      In Bowerman v. State Compensation Insurance Fund
(1983), 207 Mont. 314, 318-319, 673 P.2d 476, 478, we noted
that the provisions of the statute as amended were of a broad
and equitable nature:
     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.
In Bowerman, this Court established a three-part analysis to
determine whether the one year statute had been tolled and
the   time   for   filing  should   be   extended   by   the
Division:   ~ i r s t ,did the claimant recognize the nature of
his injuries? Secondly, did the claimant recognize the
seriousness of his injury? Thirdly, did the claimant
recognize the probable, compensable character of his injury?
Bowerman, 673 P.2d at 479.
     As recently as March 30, 1989, this Court decided the
case of Hando v. PPG ~ndustries,Inc. (Mont. 1989), 771 ~ . 2 d
956, 962. In that case we held:
    The facts of the present case indicate that
    although Hando was very much aware of those
    continuing physical, emotional, and mental ailments
    she suffered after her exposure to the paint, she
      did not know the cause of those injuries until May
      of 1984.     Prior to that time, she and SCCC
      suspected that her ongoing ailments stemmed from
      her exposure to the paint manufactured by PPG. She
      even filed a Workers' Compensation claim in May of
      1982 based upon this belief. However, the veracity
      of her belief was not known until May of 1984.
      Medical tests done in Chicago at that time provided
      Hando with a medical diagnosis that her continuing
      problems   were   due    to   a   "sensitivity   to
      petrochemicals,"   a    sensitivity   most   likely
      triggered by exposure to the PPG paint by working
      for SCCC in 1981-82.
      Hando's failure to learn the cause of her ongoing
      injuries was not due to a lack of diligence on her
      part.   Between 1982 and 1984, Hando saw numerous
      physicians, including physicians at the renowned
      Mayo Clinic in Minnesota, to determine the cause of
      her ongoing problems.    No physician who examined
      Hando during this period attributed her continuing
      ailments to exposure to the PPG paint.
      The findings of the hearings examiner when this cause
was     before the Workers' Compensation Division made no
reference to the Bowerman test nor as to whether Dodd's case
came within the Bowerman requirements.      Particularly the
findings of the hearing examiner made no reference to the
claim form submitted by Dodd to Champion, to which form we
will advert hereafter.
     Dodd sought review in the Workers' Compensation Court of
the decision by the Division denying his request for an
extension of time. In addition, Dodd requested the Workers'
Compensation Court to find that the employer was barred by
equitable estoppel from claiming the benefit of the 12-month
filing requirement; to determine that the 12-month statute
had been tolled during the time that the claimant had
received   TOC  nonoccupational disability    benefits;   to
determine that the information which the claimant originally
set forth on the TOC claim form transmitted to the employer
gave the employer in writing sufficient information to
accomplish the notice requirement of S 39-71-601, MCA, and
for attorney fees and a penalty.
     The order of the Workers' Compensation Court, which is
the subject of the appeal to this Court, made no specific
findings of fact, but set forth a limited discussion of
background facts.   The order stated that Dodd had been an
employee of Champion since 1977. The Workers' Compensation
Court noted that some time prior to 1986 claimant began
experiencing joint stiffness and pain which was diagnosed in
1980 and osteoarthritis.     H ~ Smalady was marked by a
progressive sequence of worsening of his condition. In the
spring of 1986, the claimant's physical condition was such
that the employer requested that Dodd be examined by a
physician to assess his restrictions. In June he applied for
and received disability compensation under the TOC plan.
This policy paid $160.00 a month in benefits. Dodd left work
in June of 1986. "He did not identify or notify the employer
that he had been involved in an industrial accident when he
left work."
     Based on those facts, the Workers' compensation Court
determined that his workers' compensation claim filed on
September 20, 1987, was barred by the 12-month statute of
limitations. The Workers' compensation Court made no other
findings respecting estoppel or the tolling of the
limitations statute.
     The Workers' Compensation Court ignored, as did the
hearing examiner before the Workers' compensation ~ivision,
any discussion relating to the TOC form which Dodd submitted
to champion, and the attendant circumstances which are
undisputed respecting his tender of that form.
     For the first four and half years of his employment at
the defendant's mill, the claimant worked at a job which
consisted of feeding waste wood into a chipper. From 1982
until June 6, 1986, his primary job at the mill consisted of
feeding green plywood veneer sheets into the veneer dryer.
This process required repetitive twisting, bending and
lifting while moving from side to side on a mobile platform
in order to feed the green sheets of veneer into the dryer.
In the years preceding 1986, Dodd had experienced discomfort,
apparently from arthritis, which was noted by his attending
physician.  In the spring of 1986 he experienced increasinq
difficulties which were a concern to him and his wife. He
could no longer keep up with the dryers.    He went to his
family doctor, Dr. Hufman, who diagnosed his problem as
osteoarthritis, and sent for delivery to Dodd's employer a
prescription   form which   stated  that   "Mr. Dodd   has
osteoarthritis and needs to get on a job with less strain on
ankle, knee, and hand joints." This document was delivered.
to Dodd's foreman with a request to be placed on a lighter
duty job. A copy of the document was also transmitted to the
manager of the plywood plant, John Luger. Nonetheless, Dodd
was kept on at the veneer dryer in the succeeding days.
     On May 5, 1986, Luger sent a memo to Dodd requesting him
to have Dr. Hufman fill out a Health Assessment Physical
Activity Evaluation form and return it to his foreman. Dr.
Hufman filled it out, and it was returned to the employer,
with a notation from Dr. Hufman that Dodd could not perform
repetitive movements with his affected joints, nor perform
repetitive side to side motions, lifting, grasping, pushing,
pulling, twisting, climbing, or stooping.        Dr. Hufman
reported   the  nature   of   the   illness or   injury   as
"osteoarthritis of back, hands, and ankle."
     After receipt of the form from the doctor, on June 6,
1986, Luger informed Dodd that the employer had no job for
him consistent with his physical limitations and for that
reason he was laid off.
     On June 11, 1986, Dodd went to the personnel office and
requested a disability claim form from Marilee Brown, the
personnel clerk for Champion. He did not request a specific
type of claim form from Ms. Brown.     She gave him the TOC
form. Because of his limited education, Dodd took the form
home where his wife filled out what he told her to put on the
form.     There   he   reported that his disability was
"osteoarthritis of hands, back, and ankle." He reported that
it happened "around about May 10, 1986"; that it had happened
at work, and not at home; and as to how it happened he
reported "working with wet plywood, feeding into dryer." In
response to the question was it caused by your work he
answered "yes."
     When he delivered the form to Ms. Brown, she informed
him he could not state that it happened at work. He went out
to the automobile to his wife, who with a pen crossed out the
words to which he had answered the questions, and inserted
the word "unknown," so that the answer to the question how
did it happen was "unknown," and the answer to whether it was
caused at work was "unknown." The other answers remained the
same. Thereafter, Ms. Brown completed the employer's report,
and the doctor completed the medical report which described
his condition as arthritis. Based on the submission of the
form, TOC plan paid Dodd the sum of $160.00 per week for 26
weeks, at which time his payments ended.
     When Dodd learned from his attorney that he may have had
a compensable injury, he then filed his claim for Workers'
compensation in September, 1987, one year and four months
after the last incident he reported that aggravated his
arthritis.
     Ms. Brown, in her deposition respecting this, stated she
did not remember anything relating to the compensation form
and what she had told Dodd about it.          The testimony,
therefore, of Dodd on the subject remains uncontradicted, and
the testimony of Ms. Brown does not contradict the positive
testimony of the claimant.      Harmon v. Deaconess Hospital
 (Mont. 1981), 623 P.2d 1372, 1374.
      We turn now to the language of S 39-71-601(2), MCA, to
the effect that 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. Under the
tri-part Bowerman test, here ( 1) claimant recognized the
nature of his injuries, and ( 2 ) recognized the seriousness
of his injury. The evidence here is clear that he did not
recognize, under the third part of the test, the probable
compensable character of his injury. Under Bowerman, supra,
and Hando, Dodd was entitled to an extension of time from the
~ivision up to 24 months, a time more than sufficient to
bring his claim within the statute of limitations.
      Since we determine that under our decisions as to the
effects of § 39-71-601, MCA, he was entitled to an extension
of time, it is not necessary for us to consider whether
Champion is equitably estopped from relying on the statute of
limitations nor whether the statute was otherwise tolled by
Champion's actions or the payments received from TOC.
     We determine also that Dodd is entitled to attorney fees
both in this appeal and the earlier proceedings. Whether a
penalty   should attach to it we leave to a future
determination of the Workers' compensation Court on remand.
     We make no determination at this stage as to whether
Dodd suffered a compensable injury.      That will depend
eventually on whether there is evidence before the Workers'
Compensation Court, including medical testimony, sufficient
to establish compensability. What we have determined here is
that the time period for the filing of Dodd's notice of claim
did not begin to run until he as a reasonable man recognized
the nature, seriousness and probable compensable character of
his latent condition. Bowerman, supra.
     We reverse and remand to the Workers' Compensation Court
for further proceedings.
