39-71-906, MCA

[1989] St. Paul Fire and Marine Ins. Co. v. Subsequent Injury Fund [2/19/98] 1998 MTWCC 10 On appeal from the DOL, the WCC agreed that the notice provisions of section 39-71-906, MCA (1989) could not be tolled and that the Subsequent Injury Fund (SIF) was not estopped from relying on those provisions. Although a worker had been certified with the SIF, he lied to his employer about the existence of prior injuries and neither the employer nor the insurer knew he was certified with the SIF, thus no notice was given to the SIF about his employment. Nevertheless, the plain terms of section 39-71-906, MCA, require the employer to advise the Department within 60 days after the first day of employment or "before an injury. . . " that an employee is certified under the SIF. There is no provision for tolling the limitation. There is also no requirement that a worker notify a prospective employer of certification or even obtain certification. There is no requirement that the employer invoke the SIF provisions even if informed of certification. The elements of estoppel are also not satisfied. The party against whom the insurer wishes to apply the elements of estoppel, the SIF, made no representations whatsoever. Even if the estoppel doctrine could be applied to the SIF through the employer and claimant, the insurer failed to prove the reliance and injury elements where it never asked claimant if he was certified and the insurer would not have reduced insurance premiums based on the employee's certification.