                               NO.   91-521
            IN THE SUPREME COURT OF THE STATE OF MONTANA




HERBERT SHELLEY,
                Claimant and Appellant,
     -vs-
UNITED STATES FIDELITY AND GUARANTY                         APR 2 - 1992
COMPANY, FIDELITY AND GUARANTY LIFE
INSURANCE COMPANY, VALLEY CHIROPRACTIC
CENTER, DR. JOHN E. FRANCIS,
                                                           C$     Szrd
                                                     CLERK OF S U ? ~ ~ E R IC O U H ~
                                                                             Z
                                                        S TATL OF NlCiNT4NA

                Defendants and Respondents


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


COUNSEL OF RECORD:
            For Appellant:
                Herbert Shelley, Pro Se, Bigfork, Montana
            For Respondents:
                Robert Sheridan; Garlington,             Lohn      &     Robinson,
                Missoula, Montana



                             Submitted on Briefs:         February 20, 1992
                                              Decided:    April 2, 1992
Filed:
Justice John Conway Harrison delivered the opinion of the Court.

     Herbert Shelley (Shelley) appeals from the judgment of the
Workers' Compensation Court which dismissed his appeal based on a
failure to timely file.
     The issue is whether the Workerst Compensation Court erred when
it determined that it lacked jurisdiction over the matter based on
failure to timely file an appeal.   We reverse.
     Shelley, after being    injured in 1986, was treated by a
chiropractor, Dr. John E. Francis (Francis) during 1989 and 1990.
On June 4, 1990, respondent United States Fidelity   &   Guaranty (USF&G)
denied payment for the services rendered by Francis for reasons not
the subject of this appeal. On November, 16, 1990, after a hearing
on the matter, Gordon Bruce (Bruce), a Hearing Examiner for the
Department of Labor and Industry, determined that Francis was not
entitled to payment for treating Shelley and dismissed the action.
In rendering his decision, Bruce informed appellant of the appeal
deadline in his Findings of Fact and Conclusions of Law as follows:
     Notice: This order is signed by the Hearing Examiner of
     the Department of Labor and Industry under authority
     delegated by the Commissioner. Any party in interest may
     appeal this order to the Workers' Compensation court within
     Thirty (301 workins days after the date of mailing of this
     final order as provided in Section 24.29.207(7) and
     24.29.215(3) ARM. [Emphasis added. ]
     Shelley wrote the Workers' Compensation Court to initiate the
appeal process on December 26, 1990. USF&G insists that Shelley's
option to appeal expired December 19, 1990, thirty days from the date
of the mailing of the final order according to 24.29.215, A.R.M.,
not thirty working days as stated by Bruce in the above quote.
Accordingly, USF&G opposed the appeal on the grounds of untimely
filing. The Workers' Compensation Court granted USF&G1smotion for
dismissal on August 28, 1991.    Shelley appeals to this Court.
     This appeal centers around one important point: the error of
the Department of Labor and Industry.    We previously addressed an
error of similar nature in Mellem v. Kalispell Laundry (1989), 237
Mont. 439, 774 P.2d 390.      In Mellem, the ~ivisionof Workers'
Compensation (now an entity renamed under the Department of Labor
and Industry, hereinafter referredtoasthe Department), misinformed
a claimant of her appeal rights and procedures.     We held that the
doctrineofequitableestoppelprohibitedthe Departmentfromdenying
her appeal based on failure to comply with filing requirements.
Mellem, 237 Mont. at 442, 774 P.2d at 391.   In essence, we extended
the doctrine of equitable estoppel to cover situations involving
misrepresentations made by the Department.
     [W]e have held in similar situations under the statute of
     limitations in the Workers' Compensation Act that where
     misstatements by an employer orinsurerpreventa claimant
     from filing a Workers' Compensation claim in a timely
     fashion, or mislead the claimant into believing that no
     claim can or need be filed, the doctrine of equitable
     estoppel applies to toll the limitation period and allow
     filing of the claim. Davis v. Jones (1983), 203 Mont. 464,
     661 P.2d 859. The doctrine is equally applicable to the
     facts in this case, as is the maxim "No one can take
     advantage of his own wrong." Section 1-3-208, MCA.
Mellem, 237 Mont. at 442, 774 P.2d at 391-92. We reversed the Workers'
Compensation Court with instructions to grant the claimant's appeal
in Mellem. Accordingly, we arrive at the same conclusion in the case
at bar under the doctrine of equitable estoppel. Equitable estoppel
contains six elements:
        "1. There must be conduct--acts, language, or silence--
        amountingto 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 imputedto him. 3 . The truth concerningthese
        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            .. .I1 Davis, 661 P.2d
                                                      'S
        at 861 (cpoting Lindbolm v. E m ~ l o ~ e r ~iability-~ssurance
        COrP. ( 1 9 3 0 ) , 88 Mont. 4 8 8 , 494, 2 9 5 P. 1 0 0 7 , 1 0 0 9 ) .
Mellem,    237   Mont. at     442,   774   P.2d at 3 9 2 .
        In the case at bar, Shelley received, by mail, the Hearing
Examiner's findings of fact and conclusions of law on November                       19,

1990,    three days after they were signed and dated November                16,   1990.

Shelley appealedto the Workers' Compensation Court on December                       26,

1990,    within the thirty working day time-frame. U S F & G asserts that
Shelley's appeal right expired on December                   19,   1990.   We disagree
and conclude that the six elements of equitable estoppel are present.
The Department is estopped from claiming that Shelley's appeal was
untimely since the Department misinformed him regarding the appeal
time-frame.
        It is also apparent from the Administrative Rules of Montana
dealing with the Office of Workers' Compensation Judge, that there

is authoritytogrant exceptions fornoncompliance. Section 2 4 . 5 . 3 5 0
(2)   , A.R.M. states that "Service deadlines for filing an appeal are
as follows       .   ..   (c) from all other proceedings within thirty days
of service of the final order of the department of labor and industry."

                                             4
The section immediately preceding reads:
     [Tlhe court may, in its discretion and in the interests
     of justice, waive irregularities and noncompliance with
     any of the provisions of this subchapter.
24.5.349, A.R.M.
     We conclude that a failure to timely file an appeal is
noncompliancewithinthe context of 24.5.349, A.R.M., and therefore,
an extension of time for appeal is properly entertained by the Workers1
Compensation Judge.    This is particularly true in the case at bar
since the Hearing Examiner misinformed the claimant and led him to
believe that he had thirty working days to file an appeal. In view
ofthe circumstances, the court cannot now claim that Shelley's appeal
is untimelywhenthe Department itself is the reason forMr. Shelley's
untimeliness. Weconclude that the Workers' Compensation Court could
have corrected the error via its discretionary powers.
     Additionally, we point out that the Workers' Compensation Court,
                    appeal, statedthatitstrictlyenforces appeal
indismissingShelleyls
deadlines and that 'Ino authority exists whatsoever which provides
for an appeal to the Workers' Compensation Court to be filed within
30workinqdays fromtheDivisionlsnoticeof finalorder.I1 (Emphasis
in original. )   The court further said that   It   [tlhere is no good faith
exception to the mandatory 30-day appeal period.           .   . ."   However,
a recent opinion fromthe Workers' Compensation Court indicates that
the court does recognize exceptions.     McColley v. Laborers1 Local
98 & State Comp. Fund (1990), WCC No. 9001-5699, Vol. XI No. 770.
In McCollev, the court said;
     The [Workers1Compensation] court recognizes the requirement
     of the filing deadline and its importance and that
     exceptions must be carefully considered.
McCollev, Vol. XI No. 770, pg 2.    In McCollev, there was confusion

over when the claimant's letter of appeal actually reachedtheWorkersg
compensation Court. Under those circumstances the court refused to
dismiss the appeal as untimely.
     Absent an abuse of discretion, a discretionary ruling will not
be overturned. Steer, Inc. v. Department of Revenue (1990), 245Mont.
470, 475, 803 P.2d 601, 603-604. Under the facts in the case at bar,

we hold that the Workersg Compensation Court abused its discretion
when it dismissed Shelley's appeal for lack of jurisdiction based
on an untimely appeal.    Accordingly, we remand to the Workersg
Compensation Court with instructions to hear the matter as a proper
and timely appeal.   Reversed.
                                       n


We concur:
                                          April 2, 1992

                                  CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:


Herbert Shelley
250 Williams Lane
Big Fork, MT 5991 1


Department of Labor and Industry
Legal Services Division
P.O. Box 1728
Helena, MT 59624

Robert Sheridan
Garlington, Lohn & Robinson
P.O. Box 7909
Missoula, MT 59807

                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA
