                                        No. 13044

          I N THE SUPREME COURT OF THE STATE O M N A A
                                              F OTN

                                           1975



M.   J . RASSLEY,

                                 Claimant and A p p e l l a n t ,
          -vs   -
SECURITY TRANSPORT, employer
and UNITED PACIFIC RELIANCE
INSURANCE COMPANY,

                                 Defendant and Repsondent.



Appeal from:         D i s t r i c t Court of t h e E i g h t e e n t h J u d i c i a l D i s t r i c t ,
                      on or able W. FT. L e s s l e y , J u d g e p r e s i d i n g .

Counsel of Record :

       For A p p e l l a n t :

                Morrow, Nash and Sedivy, Bozeman, Montana
                Donald A. Nash a r g u e d , Bozeman, Montana

       For Respondent :

                Hughes, B e n n e t t and C a i n , Helena, Montana
                George T. B e n n e t t a r g u e d , Helena, Montana




                                                     Submitted :         November 3 , 1975

                                                         !)ec i d e d : NQV   2 5 ?k?%
Mr. Chief Justice James T. Harrison delivered the Opinion of
the Court.
          This is an appeal from an order of the district court,
Gallatin County, sustaining a determination of the Workmen's
Compensation Division.

          Appellant suffered an industrial accident in the nature
of a broken ankle of his right leg on June 9, 1959.    On July

13, 1959, appellant filed an employee's claim for compensation
with the Industrial Accident Board (predecessor to the Division
of Workmen's Compensation, Department of Labor and Industry).

Appellant was treated at a Bozeman hospital by his personal

physician.    The physician reported appellant's bone was healing
satisfactorily on September 11, 1959, and the hospital's physical

therapist reported the appellant had a "full range of motion"
on October 2, 1959.     Based on those reports the adjuster for the

then industrial accident insurer applied for a final compensation

award from the Industrial Accident Board (IAB). A notation of
final award was made on the IAB's records of payment sheet on
November 6, 1959, with a "Final Award" on the IAB Form 64A sent
to appellant on the same day.
          Appellant returned to work in October, 1959, and worked

at various construction jobs until April, 1963.    There is
evidence in the record that appellant was not continuously
employed as a heavy equipment operator due to trouble with his
right ankle and foot.

          From April, 1963, to October, 1972, appellant was employed
full time with the Gallatin County road office.    Appellant oper-
ated a road grader during much of his employment with Gallatin
County.   Appellant left his employment with the county due to a
debilitating condition diagnosed as multiple sclerosis affecting
his spinal column, a possible tumor of the spinal column, possible

disc lesions in the spinal column, and extreme spasticity of both
legs.   In a 1974 report to the Workmen's Compensation Division
(WCD) a Bozeman orthopedic specialist discussed appellant's
progressive neurological impairment and stated appellant's status
was not the result of the 1959 injury, nor a later back injury
while working for the county.
        On January 8, 1973, appellant stated in a letter to the
WCD :
        "In 1959 I submitted a claim for accident on a
        broken ankle and as I was able to work, I did
        not accept the settlement offered. Now I am
        unable to work and would like to know what
        kind of settlement you are willing to offer."
        In May, 1973, the WCD informed appellant his claim could
not be reopened due to lapse of time.   Appellant requested and
received a hearing before a WCD hearing examiner resulting in
a finding that under the Montana Workmen's Compensation Act (Title
92, R.C.M. 1947), appellant had four years from November 9, 1959,
to petition the IAB to reopen his claim, after the entry of the
"Final Award" pursuant to the Act.
        The district court affirmed the WCD determination and
appellant appeals from that holding.
        The issue presented in this appeal is whether appellant,
having suffered an industrial accident, is required under the
Workmen's Compensation Act to file his petition to reopen and
reconsider his claim within four years following the entry of
a final award.
        The WCD may amend or rescind an award as provided in
§92-826, R.C.M. 1947:
        "The board shall have continuing jurisdiction
        over all its orders, decisions, and awards, and
        may, at any time, upon notice, and after oppor-
        tunity to be heard is given to the parties in
        interest, rescind, alter, or amend any such order,
        decision, or award made by it upon good cause
        appearing therefor. Provided, that the division
        shall not have power to rescind, alter, or amend
        any final settlement or award of compensation
           more than four (4) years after the same has been
           made, and provided further that the board shall
           not have the power to rescind, alter, or amend
           any order approving a full and final compromise
           settlement of compensation. * * * "
           Appellant argues the 1959 "Final Award" of the IAB was
not final.     If appellant did not believe the November 6, 1959
award was final he had four years from that date to petition for
a reopening of his claim to determine if further compensation
was due.    Appellant took no such action but waited fourteen
years, or ten years after the statute of limitations had run, to
apply for a reopening of his claim.    A reasonable man, truly
believing a compensation award is not final, although clearly
labeled as such, would not wait over a decade to contest the
finality of the award.
       Appellant testified before the WCD hearing examiner:
           "Well, if I had not had to retire, I probably
           never would have turned in for, if I could have
           kept on working."
The record, as a whole, indicates appellant never questioned the
finality of the 1959 award until his present, unrelated, neurolog-
ical impairment forced him to retire.
        The record contains substantial evidence to support the
holding of the district court affirming the WCD determination
that the 1959 award was final and the four year statute of limi-
tations barred a reopening of the claim.    This Court has held
on numerous occasions the decision of a district court affirming
a WCD determination will not be reversed unless the evidence
clearly preponderates against the findings.    Aho v. Burkland Studs,
153 Mont. 1, 452 P.2d 415; Newman v. Kamp, 140 Mont. 487, 374 P.2d
100; Birnie v. U.S. Gypsum Co., 134 Mont. 39, 328 P.2d 133.      These
cases deal with initial Workmen's Compensation awards, but the
principal is equally applicable to the present determination.
       Appellant argues the WCD has continuing jurisdiction over
appellant's claim so long as he has not received all he might
receive under the Workmen's Compensation Act.   This Court said
a claimant should be fully compensated for his particular
disability in Meznarich v. Republic Coal Co., 101 Mont. 78,
53 P.2d 82, and went on to say at page 88:

        "[There is] a clear legislative intent that no
        case in which compensation has been awarded
        shall be finally closed until the maximum period
        of payments for the disability for which such award
        has been made has expired, except that, under the
        amendment of 1929 to section 2952 [predecessor to
        S92-8261, above, this power is withdrawn with
        respect to 'any final settlement' after the ex-
        piration of two years [now four years] from the
        date the order awarding compensation is made.
        * * *" (Emphasis added)
        The legislature recognized the need for continuing claim
jurisdiction in the WCD to prevent injustice should the indus-
trial accident have unforseen complications during the maximum
payment period of the disability.   The legislature also wished to
prevent attempts to reopen claims after the elapse of many years
with the consequent clouding of memories, unavailability of
evidence and the difficulty of determining the relationship be-
tween the original injury and a present aggravated disability.
Thus, the four year statute of limitations for reopening claims
was enacted.   The present case is just the sort that the statute
of limitations was enacted to prevent.
       Appellant also argues he was misled by an agent of the
insurer into believing he had no further compensation rights.
This alleged misleading advice was given in the late 1960's
(after the running of the statute of limitations) according to
appellant's testimony before the WCD hearing examiner.   Appel-
lant was not certain as to what was said or when it was said
and on cross-examination could not state as to how he was misled.
Assuming, arguendo, that he was misled, this Court has stated
there must be an intent to mislead the claimant to his detriment
b e f o r e t h e WCD i s e s t o p p e d from a s s e r t i n g t h e s t a t u t e o f l i m i -

tations.         Ricks v . Teslow C o n s o l i d a t e d , 162 Mont. 469, 512 P.2d

1304.      N e v i d e n c e a p p e a r s on t h e r e c o r d t h a t such i n t e n t t o
            o

m i s l e a d was p r e s e n t .   Even i f t h e WCD may be shown t o have

a r r i v e d a t a n improper d e t e r m i n a t i o n o v e r a decade a g o , s h o r t

of f r a u d o r c o e r c i o n , a p p e l l a n t h a s e x h a u s t e d h i s remedy and i s

now bound by t h e law.              M o f f e t t v . I n d u s t r i a l A c c i d e n t Bd.,   130



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