KALLYS K. ALBERT, Employee/Appellant, v. DUNGARVIN MINN. and ZURICH N. AM. INS. CO., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
AUGUST 10, 2010
PRACTICE & PROCEDURE - STATUTE OF LIMITATIONS; STATUTES CONSTRUED - MINN. STAT. § 176.151, SUBD. 1. Minn. Stat. § 176.151, subd. 1, requires that a claim petition be filed both within three years of the filing of the First Report of Injury and within six years of the occurrence of the work injury.
PRACTICE & PROCEDURE - DISMISSAL; PRACTICE & PROCEDURE - STATUTE OF LIMITATIONS. Where the pro se employee’s claim petition was filed more than three years after the filing of the First Report of Injury, but where the employee had contended that his untimely filing under Minn. Stat. § 176.151, subd. 1, occurred because of conduct attributable to the employer and insurer, the compensation judge’s dismissal of the employee’s claim petition based on the statute of limitations following a telephone special term hearing was vacated and the matter remanded to the Office of Administrative Hearings for a full evidentiary hearing.
Vacated and remanded.
Determined by: Pederson, J., Rykken, J., and Johnson, C.J.
Compensation Judge: Paul V. Rieke
Attorneys: Kallys K. Albert, pro se Appellant. Patrick T. Grove, Drawe & Maland, Edina, MN, for the Respondents.
WILLIAM R. PEDERSON, Judge
The employee appeals from the compensation judge’s dismissal of his claim petition on grounds that his claim is barred by the three-year statute of limitations specified in Minnesota Statutes section 176.151, subdivision 1. We vacate the order and remand the case to the Office of Administrative Hearings for an evidentiary hearing and findings on the issues presented by the motion to dismiss.
On December 4, 2005, Kallys Albert [the employee] was employed as a program counselor with Dungarvin Minnesota, LLC [the employer]. On that date, the employee alleges that he sustained injuries arising out of and in the course of his employment with the employer. The employer evidently reported the employee’s claimed injuries to its workers’ compensation insurance carrier, Zurich North America Insurance Company [Zurich], which, on December 12, 2005, filed a Notice of Insurer’s Primary Liability Determination [NOPLD] denying liability for the claimed injuries. Sixteen days later, on December 28, 2005, the insurer filed a written report of the injury, on a first report of injury form, with the Department of Labor and Industry.
About three and a half years later, on July 31, 2009, the employee filed a claim petition, in which he alleged entitlement to about one week of temporary total disability benefits and to payment of “to be determined” medical expenses with three providers, reserving a claim to permanent partial disability benefits - - all consequent to a work injury to his “[c]hest wall & feet” on December 4, 2005. The employer and its workers’ compensation insurer filed their answer to the employee’s petition on August 18, 2009, denying primary liability for the alleged injury. The answer went on to assert that, “if the employee sustained an injury at this answering Employer, which is expressly denied, any such injury was minor, temporary and one from which the Employee has long since fully recovered.”
On November 16, 2009, the employer and insurer filed a motion to dismiss, contending that the employee’s claim was filed more than three years after the employer had made written report of the injury and was therefore barred by Minnesota Statutes section 176.151. Attached to the motion was an affidavit completed by the insurer’s claims adjuster in which she indicated that the employer and insurer had paid no benefits to or on behalf of the employee related to his claimed injury of December 4, 2005. Also attached were copies of the NOPLD and first report of injury. On that same date, November 16, 2009, the employee’s attorney filed a notice of withdrawal from his representation of the employee. A few days later, on November 20, 2009, the employee, acting pro se, filed a reply in opposition to the employer and insurer’s motions, together with a cross motion on his own behalf.
The matter came on for a telephone special term hearing before a compensation judge on December 17, 2009. Issues at the hearing were as follows: (1) the employer and insurer’s motion to dismiss, based on the fact that the employee’s claim petition was filed more than three years after the filing of the first report of injury, beyond the time limitation specified in Minnesota Statutes section 176.151; and (2) the employee’s cross motion, essentially requesting payment of his claim for workers’ compensation benefits together with a claim for penalties. The employee based his defense against the employer and insurer’s motion principally on the contention that the statute of limitations provides not only that a claim must be filed within three years after the filing of a first report of injury but also that the claim must be filed not more than six years from the date of the accident. The claim petition filed July 31, 2009, he argued, did not fall beyond the six-year limit. He also argued that, because of deliberate deception by the employer and insurer, he was not provided with all of the information and documentation, essential to his claim, to which he was entitled by statute. Specifically, in an affidavit submitted in response to the motion to dismiss, the employee asserted that, if there was a delay in the filing of his claim, it was due to the employer and insurer’s failure to provide “statutor[ily] mandated information to assist him with his claims, [and] refusal to respond to his written express demand on the issue.” As such, he contended, the employer and insurer either waived or should be estopped from asserting its statute of limitations defense.
The special term hearing was recorded, and the compensation judge heard arguments by counsel and the employee for and against the motion to dismiss, but no testimony was taken, and no documentary exhibits were submitted or identified. The “record” considered by the judge evidently included affidavits by the employee, counsel for the employer and insurer, and the claims adjuster from Zurich, together with various documents attached to those affidavits and submitted by the parties together with their motions.
By Order Dismissing Claim Petition filed December 22, 2009, the compensation judge granted the employer and insurer’s motion to dismiss the employee’s claim petition on statute of limitations grounds, finding “no viable argument . . . for a tolling, or elimination, of that statute.” The employee appeals.
Minnesota Statute section 176.151, subdivision 1, provides that an employee must begin an action or proceeding to determine or recover workers’ compensation benefits no later than three years after the employer has made a written report of the injury to the commissioner of the Department of Labor and Industry [DOLI]. In this case, a first report of injury was filed with DOLI on December 28, 2005. The employee did not begin an action or proceeding until his claim petition was filed on July 31, 2009, more than three years after the filing of the first report of injury. The judge’s conclusion that filings for benefits in Minnesota must satisfy both the three-year and the six-year limits of the statute is correct. The “but not to exceed” language of the statute does not pose an alternative to the within-three-years provision. The six-year limit is merely a cap to bar the filing of claim petitions more than six years post accident. However, the employee’s other contention, that his delay in filing was due to actions by the employer and insurer, warrants an evidentiary hearing.
Where an employer’s misrepresentations are primarily responsible for an employee’s failure to file a claim petition within the time specified by statute, the employer may be estopped from asserting as a defense that the claim was time-barred. Neuberger v. Hennepin County Workhouse, 340 N.W.2d 330, 36 W.C.D. 348 (Minn. 1983); Kahn v. State, Univ. of Minn., 289 N.W.2d 737, 32 W.C.D. 351 (Minn. 1980). Estoppel is an equitable doctrine “intended to prevent a party from taking unconscionable advantage of his own wrong by asserting his strict legal rights.” Northern Petrochemical Co. v. United States Fire Ins. Co., 277 N.W.2d 408, 410 (Minn. 1979). Its application may be appropriate where the party against whom estoppel is sought made inducements that were relied upon to the harm of the party seeking the estoppel. Sandas v. Iron Range Lumber, Inc., 52 W.C.D. 392 (W.C.C.A. 1994). Furthermore. estoppel may be appropriate even where there was no affirmative intent to deceive, Pincombe v. Miketin Boarding Home, slip op. (W.C.C.A. Sept. 23, 1999)(citing Lofgren v. Pieper Farms, 540 N.W.2d 834, 53 W.C.D. 464 (Minn. 1995)), and whether equitable estoppel should apply is generally a question for the trier of fact, see Pincombe; id.; Clay v. American Residential Mortgage Corp., 58 W.C.D. 629 (W.C.C.A. 1998). At a minimum, there must be a showing that the party being estopped made a misrepresentation of material fact on which the party seeking estoppel reasonably relied to his detriment. Howe v. Zippy Distrib. Co., 39 W.C.D. 732 (W.C.C.A. 1987).
On appeal, the role of this court is to determine whether the decision below is legally correct and whether the evidence supports the determination. Because there has been no evidentiary hearing in this case, we are, at this stage in the proceedings, unable to effectively review the factual and legal issues in this dispute. Whether there exists some equitable or other basis for tolling the statute of limitations in this case requires a hearing before a compensation judge.
We, accordingly, remand the matter to the Office of Administrative Hearings for assignment to a compensation judge for an evidentiary hearing and findings on the employer and insurer’s motion to dismiss under Minnesota Statutes section 176.151, subdivision 1. Either party may, of course, appeal from the judge’s decision on remand.