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IN THE WORKERS’ COMPENSATION COURT OF THE STATE OF MONTANA
2004 MTWCC 26
WCC No. 2002-0627
ATLANTIC RICHFIELD COMPANY
ORDER DENYING SUMMARY JUDGMENT
Summary: The claimant seeks a hearing aid. He attributes his hearing loss to his employment with ARCO, from which he retired in 1984. ARCO moves for summary judgment on the ground that his request is time-barred.
Held: ARCO has not established as a matter of law that the claim is time-barred since its own facts indicate grounds to estop it from asserting a statute of limitations defense. Specifically, ARCO assured the claimant and other workers that hearing aids for job-related hearing loss would be paid for through their union contracts.
¶1 Pending before the Court is a petition filed by the claimant, David Stewart, seeking a hearing aid. The claimant is representing himself, thus appearing pro sé.
¶2 The claimant first brought his claim to the Court’s attention through an August 15, 2002 handwritten letter in which he wrote:
The Court deemed the claimant’s letter sufficient to open a case but instructed him to complete and return a Petition for Hearing form (Occupational Disease), which the Court mailed to him. The form enables pro sé claimants to fill in the blanks with the essential information required by ARM 24.5.301.
¶3 The Court received the completed form on August 20, 2002. In pertinent part, with underlined portions indicating blanks completed in handwriting, the petition provides:
(Petition for Hearing, ¶ 1.) Where the form requested explanation of the nature of the dispute, the claimant wrote:
(Petition for Hearing, ¶ 3.) As for relief requested, the claimant wrote “that I am entitled to get a hearing aid.” (Petition for Hearing, Prayer.)
¶4 The matter now before the Court is respondent Atlantic Richfield Company’s (ARCO) motion for summary judgment on the ground that the claim is time-barred. The claimant has not responded to the motion. Since the claimant is proceeding pro se’ the Court does not deem his failure to respond to the motion as an admission it is well taken, ARM 24.5.316(4), but instead addresses the motion on its merits. For the reasons explained below, the motion is denied.
¶5 The respondent asserts the following facts through an affidavit of its counsel:
(Affidavit in Support of Respondent’s Consolidated Motions at 1-2.)
¶6 While the claimant did not file a response to the motion, he has provided a number of documents to the Court. The Court reviewed those documents as potential evidence in opposition to the motion for summary judgment.
¶7 The documents include a letter dated October 22, 1984, from Dr. Neal L. Rogers to Mr. Roger Oren of the Anaconda Company, Claim Department. The letter states:
(Petitioner’s Trial Exhibits.)
¶8 Also included in the claimant’s proposed trial exhibits are records that appear to reflect regular hearing examinations of the claimant by or at the behest of ARCO’s predecessor, The Anaconda Company, in the 1970s. These, along with Dr. Rogers’ letter of October 22, 1984, suggest that ARCO tested its employees for hearing loss and had notice of the claimant’s hearing loss as early as the 1970s and certainly by the time of his 1984 retirement.
¶9 After noting these exhibits, particularly the letter from Dr. Rogers, the Court requested additional briefing from both parties regarding whether Dr. Rogers’ letter could be considered a claim for compensation. The respondent then submitted an affidavit of counsel asserting, on information and belief following investigation, that
(Affidavit of Andrew J. Utick, ¶ 3.) Mr. Utick then recites a standard provision of the union contracts used by the company, as follows:
(Id., ¶ 6.) Finally, as relevant to the current motion, that counsel
(Id., ¶ 8.)
¶10 Summary judgment is not a substitute for trial and will be granted only where there is no dispute concerning the facts material to the motion and those facts entitle the moving party to judgment as a matter of law. Delaware v. K-Decorators, Inc., 1999 MT 13, ¶¶ 55-56, 293 Mont. 97, ¶¶ 55-56, 973 P.2d 818, ¶¶ 55-56. The burden is on the moving party to demonstrate its entitlement to judgment, and where based on the statute of limitations the burden is upon the party raising the defense to prove affirmative facts which establish the defense, Preston v. Transportation Ins. Co., 2002 MTWCC 23, ¶ 30.
¶11 It is not clear whether the claimant’s request for a hearing aid falls within the occupational deafness provisions of the Workers’ Compensation Act (WCA) (sections 39-71-801, MCA (1979), et seq.), within the Occupational Disease Act (ODA) (sections 39-72-101, MCA (1979), et seq.), or within both. See Wylie v. State Compensation Ins. Fund, WCC No. 9707-7785 (1997) (noting that the occupational deafness provisions of the WCA may not be the exclusive remedy for occupational deafness where provisions of the ODA may also apply).
¶12 Part 8 of the WCA allows compensation to be “awarded for occupational deafness as provided in this part.” § 39-71-801, MCA (1979-2003). “Occupational deafness” is defined in section 39-71-802(1), MCA (1979-2003), as “permanent partial or permanent total loss of hearing of one or both ears due to prolonged exposure to noise in employment.” The benefit provisions of Part 8 make no reference to hearing aids or other medical expenses, see §§ 39-71-807, MCA (1979-2003), 39-71-808 through -809, and -812, MCA (1971-2003). However, for present purposes the Court assumes that payment for hearing aids is a benefit under that part.
¶13 The time for filing a claim under Part 8 is addressed in section 39-71-813, MCA (1979-2003), which provides:
By referencing the limitation provision “in this chapter,” section 39-71-813, MCA (1979-2003), incorporates the timeliness requirements of section 39-71-601, MCA (1973-1987), which states:
¶14 Also relevant is section 39-71-808(2), MCA (1971-2003), which defines the date of injury from which the statute of limitations commences running. In relevant part, that statute states:
Under this provision, the limitations period for a claim for occupational deafness was one year after the claimant’s retirement.
¶15 If the claimant’s petition is analyzed under the ODA, the deadline for his claim is governed by section 39-72-403, MCA (1977-1984), which provides:
¶16 In the present case, the claimant retired on September 1, 1984, and by his own admission he has been aware of his alleged occupational deafness since at least July of 1984. However, the affidavit provided by respondent shows that his employer had in place a program for testing for occupational hearing loss and an agreement under a union contract to pay for hearing aids. That information raises a factual issue as to whether the respondent is estopped from raising the statute of limitations as a defense. It has long been the rule that where an employer has through its affirmative actions lulled an employee into believing he did not have to file a workers’ compensation claim, the employer and the insurer are estopped from asserting the statute of limitations as a bar to a claim.
¶17 The seminal case is Lindblom v. Employers’ Liability Assurance Corp., 88 Mont. 488, 295 P. 1007. In that case an agent for told the claimant, “We will take care of it,” lulling him into the belief that he was going to be paid for his injury. 88 Mont. at 496, 295 P. at 1009.
¶18 In Lindblom, the Court invoked the doctrine of estoppel to bar the insurer from asserting a statute of limitations defense. It laid out a test of several parts for determining whether an estoppel arises. While that test was later characterized in Wassberg v. Anaconda Copper Co., 215 Mont. 309, 316, 697 P.2d 909 (1985), as a four (4) part test, it was in fact a six (6) part test, as follows:
295 P. at 1009 (quoting from 2 Pomeroy’s Equity Jurisprudence (4th Ed.) 1644.).
¶19 In Wassburg, the Court repeated the test and quoted approvingly the following, brief synopsis of the most common application of the doctrine:
215 Mont. at 319, 697 P.2d
at 909, 915-16 (quoting from McKaskle v. Industrial Commission of
Arizona, 659 P.2d 1313, 1316 (Az. 1982).).
¶21 Under these circumstances, ARCO’s affirmative action in testing its employees and providing hearing aids through its contract, was equivalent to telling the claimant that the Company would take care of him. ARCO’s actions go beyond mere silence or failure to tell the claimant he could file a claim. Compare with Wassberg and cases cited therein. The claimant may well have been lulled by ARCO’s actions into not pursuing a worker’s compensation or occupational disease claim at that time. On these facts the respondent is not entitled to summary judgment.
¶22 The respondent’s motion for summary judgment is denied.
DATED in Helena, Montana, this 10th day of March, 2004.
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