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Hiett v. Montana Schools Group Insurance Authority9/6/2001
d the latter prohibition as trumping the absurd construction rule. Thus, even after reading all of the various provisions in section 39-71-704, MCA (1995), and construing them together, I am unable to find anything in the statute which could be construed as requiring payment for medications after a worker has reached medical stability except where the medications would return the claimant to employment or enable an employed claimant to continue working. ยง 39-71-704(1)(b) and (1)(g), MCA.
III. Waiver and Estoppel
Claimant's final argument is that MSGIA waived its right to contest claimant's entitlement to payment for medications or is estopped from doing so.
"Waiver is an equitable doctrine, applicable when there is an intentional or voluntary relinquishment of a known right, claim or privilege, or such conduct as warrants an inference of the relinquishment of such right." Sperry v. Montana State University, 239 Mont. 25, 30, 778 P.2d 895, 898 (1989). Unlike the insurer in the recent case of Swartz v. State Fund, 2001 MTWCC 50, MSGIA did not expressly state that claimant is entitled to the benefits she seeks. Certainly, in signing the settlement agreement, it expressly agreed to pay any medical benefits required by statute. Although it was paying benefits without evidence of employment or the likelihood of employment when the agreement was signed, that conduct does not rise to the level of an intentional and voluntary relinquishment of its right to contest claimant's right to payment for prescription drugs.
As a general matter, estoppel arises when a party, through its acts, conduct, or acquiescence, has caused another party in good faith to change its position for the worse. Selley v. Liberty Northwest Ins. Corp., 299 Mont. 127, 998 P.2d 156 (2000)(citations omitted). The doctrine is designed to prevent one party from unconscionably taking advantage of a wrong while asserting a strict legal right, and will be invoked where "justice, honesty, and fair dealing" are promoted. In re Marriage of K.E.V. 267 Mont. 323, 331, 883 P.2d 1246, 1251 (1994).
The six elements of equitable estoppel are:
1. There must be conduct amounting to a representation or a concealment of material facts;
2. These facts must be known to the party estopped at the time of the conduct, or at least the circumstances must be such that knowledge of them is necessarily imputed to him;
3. The truth concerning these facts must be unknown to the other party claiming the benefit of the estoppel, at the time when it was acted upon by him;
4. The conduct must be done with the intention, or at least with the expectation, that it will be acted upon by the other party, or under such circumstances that it is both natural and probable that it will be so acted upon;
5. The conduct must be relied upon by the other party, and, thus relying, he must be led to act upon it;
6. He must in fact act upon it in such a manner as to change his position for the worse, in other words, he must so act that he would suffer a loss if he were compelled to surrender or forego or alter what he has done by reasons of the first party being permitted to repudiate his conduct and to assert rights inconsistent with it. Kuzara v. State Compensation Ins. Fund, 279 Mont. 223, 231, 928 P.2d 136, 141 (1996) (citations omitted).
All six elements must be satisfied, Billings Post No. 1634 v. Montana Dep't of Revenue 284 Mont. 84, 90, 943 P.2d 517, 520 (1997), and they must be satisfied by clear and convincing evidence. Beery v. Grace Drilling (1993), 260 Mont. 157, 163, 859 P.2d 429, 433.
Even assuming that M
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