Leschner v. Department of Labor & Industries

My views concerning the issues in this case are well expressed in the trial judge's memorandum opinion, which reads in part:

"It is clear that unless, on the theory that the extent of the injury was not discovered until 1944, or that the failure of Dr. Dodds to prepare and file this claim — as he said he had already done, works as an estoppel against the state to set up the one year limitation, the statute would bar the claim.

"Section 7689, Rem. Rev. Statutes sets forth what should be done when an accident occurs. Claimant fully complied with that requirement. The employer failed to comply in any respect. She was sent to a doctor by the employer and he failed to discover her neck and back injury and failed to inform her of her rights under the act and when she asked about it he informed her he had filed the necessary papers and she, relying on both the employer and the doctor, naturally knew of no reason to file an independent claim. Whatever may have been the intention of the doctor his statement and conduct was calculated to leave in the mind of claimant the impression that all had been done that was required to be done.

"By the undisputed facts Dr. Dodds, whose duty it was, 1st, ``To inform the injured workman of his right' and, 2nd, ``To lend all necessary assistance in making this application,' (Section 7686-(a) Rem. Rev. Stat.) not only failed to do either but actually misled claimant into believing these things had been done when he told her it had all been attended to. (Tr. p. 53) Failure of the physician to file a report is made a misdemeanor. (Rem. Rev. Stat. 7686-(e).

"In Ferguson v. Dept., 168 Wn. 677, the case of Stolp v.Department, 138 Wn. 685, was held inapplicable in view of the 1927 amendment. In Fee v. Department, 151 Wn. 337, the Court relied on the Stolp case but the matter was held to be an ``aggravation of injury' and the three-year rule was applied.

"In Crabb v. Department, 186 Wn. 505, a claim was timely filed for an injury to an ankle. Claimant was struck on the neck and head when that accident occurred but no mention was made of the latter in the original claim filed. Two years after the accident claimant petitioned the department to reopen his claim and consider the injuries to his head and neck. The department refused to reopen on the ground the claim for head and neck injuries was not filed within the year. The court points out that the extent of the head and neck injuries were unknown to claimant and physician at the time of filing the original claim and the court then held, following Skelly Oil Company v. Standley, 148 Oklahoma 77, that the one year statute did not bar the claim. However, it should be noted that there was a valid claim arising out of the same accident actually filed.

"In Sandahl v. Department, 170 Wn. 380, heard in 1932, the Court considered the statute of 1927, comparing it to the previous statute and specifically held ``The legislature intended that the claim should be filed within one year after the date of the injury,' and this time began to run at the time the injury happened.

"Nelson v. Department, 9 Wn. (2nd) 621, was a case where claimant was injured in May, 1933, by a broken ankle. The claim was closed October 24, 1933. On October 2, 1934, he filed another claim for infection to the other leg. In February, 1935, he filed a petition for rehearing on the order closing the 1933 and 1934 claims and for the first time claimed back injury in the May, 1933, accident. The Court discussed the Crabb case and Judge Simpson interpreted that case as follows:

"``When the disabling effect of any injury was not known within one year from the date of the accident and was thereafter discovered, the claim for compensation was not barred by the statute of limitations.'

"The court following the Crabb case held the statute of limitation was not a bar.

"This case differs from the Crabb and Nelson cases in this important particular: in both those cases the accident was timely reported and some claim timely filed; while here no claim was filed until long after the one year period had run.

"A somewhat similar situation to those in this case was held to work an estoppel in Mulhall v. Nashua Mfg. Co., 115 A. 449, a New Hampshire case, where there was a six months limitation one the filing of claims and the claim was filed beyond that time.

"In Kettering v. Fox 234 P. 464 (Colo.), the employee was struck by a train; within the six months limitation the employer and insurance company notified the commission they would contest the claim. The commission held a hearing at the request of the insurer at which the claimant appeared without an attorney and stated he did not know whether he would sue the railroad company until he consulted his attorney. The hearing was ordered continued for claimant to file his election of remedies. At the time the claimant notified the commission the statutory six months limitation had run. This was held an estoppel arose.

"In Guy v. Stoecklein Baking Co., 1 At. 2d 839, the court quotes another Pennsylvania case with approval as follows:

"``Where a person is unintentionally deceived as to his rights by one who has authority in the premises to act, courts will not, if possible to prevent it, permit such deception to work an injury to the innocent party.'

and held a promise to file proper proceedings not fulfilled and permitting the time limit to be passed, should and did work an estoppel.

"The essential elements of equitable estoppel are well set forth in Lindblom v. Emp. Liability Corp. 295 P. 1007. That equitable estoppel is a complete defense is held in AmericanMutual Liability Co. v. Hamilton, 135 S.E. 21.

"It is true that these cases arose in states where the employer is covered by insurance companies and the state board or commission is the appeal and supervising agency but all have statutory limitation within which claims may be filed. It is also true that in each of these cases the act relied upon as creating an estoppel by the claimant was done by either an agent of the insurer or the employer. In this state the matter is handled exclusively by the state itself but the act supplies the only connecting links between the state and the injured workman. His only means of contact is that provided by the statute itself in Section 7686(a). This section and section 7689 provide the only machinery by which the injured workman can contact the department.

"If it be said he should himself file with the Department his claim then it must be noted that such a claim must be accompanied by the certificate of the physician who treated him; without the certificate of the physician who treated him his claim would be defective on its face and of no avail. He is compelled by the statute to resort to a physician to file a claim in any event. The State by the act itself has provided but a single agency of contact for a claimant, to-wit: the attending physician and provided penalties for his derelictions or neglect. In the cases above referred to the agency of contact selected by the state was either the insurance company or the employer, and the great weight of authority is that by their acts they may create an estoppel against the bar of the statute of limitation in all of these states.

"The Court is unable to note any valid distinction between them and our state monopoly — they chose one intermediary, while our state chose the licensed physicians of this state as theirs, and when the state's chosen intermediary fails in his solemn duty the Court can see no reason why the claimant should be deprived of her rights because of his neglect.

"In this case neither the attending physician or the company (Sec. 7689) performed the duty imposed by statute. On the other hand claimant did all she could do or was required to do and relied upon the physician's statement that the claim was properly attended to, and further did, through another physician as soon as she found the real result of the accident, file in all promptness a proper claim.

"In view of the oft expressed purpose of the act, as a humanitarium effort to assist the injured workman and the express demand for a liberal construction, the Court is convinced that the attending physician is a representative of the state, clothed with a duty and responsibility, and if he fails, without fault of the claimant, and the benefits of the act are lost by reason thereof, that fact should not deprive a claimant of her just rights under the law and that the state should be estopped to claim the benefit of the physician's error."

The judgment should be affirmed.

ABEL, MILLARD, and SCHWELLENBACH, JJ., concur with SIMPSON, J.

[En Banc. October 16, 1947.] ORDER ON MOTION TO DISMISS APPEAL AND WITHDRAW EN BANC OPINION A petition for a rehearing En Banc was granted in this case, and while the matter was thus pending, the parties stipulated to dismiss the appeal and joined in moving the court to withdraw itsEn Banc opinion herein filed June 7, 1947.

The motion to dismiss the appeal is granted; the motion to withdraw the En Banc opinion herein is denied. This ruling is based on In re Brown, 6 Wn.2d 215, 101 P.2d 1003,107 P.2d 1104.

Since nothing remains in this court upon which a judgment can operate, the En Banc opinion hereinbefore referred to is not authoritative. This present order will be published in the bound volume of our reports immediately following the En Banc opinion previously rendered.

No costs will be recovered in this court by either party.

Dated this 16th day of October, 1947.

By the Court:

JOSEPH A. MALLERY

Chief Justice