No. 80-348 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981
ROBERT BENNETT, Claimant and Appellant,
HUGH BENNETT, Employer and STATE COMPENSATION INSURANCE FUND, Defendant and Respondent.
Appeal from: Workers' Compensation Court Hon. William Hunt, Judge presiding. Counsel of Record: For Appellant: Hoyt and Trieweiler, Great Falls, Montana John Hoyt argued, Great Falls, Montana For Respondent: Garrity, Keegan and Brown, Helena, Montana Thomas Keegan argued, Helena, Montana
Submitted: October 20, 1981
Decided: DEC - 7 1981 ,
o&a; Filed: - - v7 1481
- Clerk Mr. Justice John Conway Harrison delivered the Opinion of the Court. This appeal is from a denial of benefits from the decision of the Workers' Compensation Court. Five issues are raised in this appeal: 1. If the Division of Workers' Compensation has not published rules governing the time and method of electing coverage for members of an employer's family dwelling in the employer's household, is the Division precluded from denying benefits to Robert Bennett on the basis that no election was made to cover him? 2. Is the State Fund equitably estopped from denying cover age? 3. Does section 39-71-401, MCA, violate due process because employers are not instructed on how to elect family coverage? 4. Does the family member exclusion deny equal protection? 5. Should appellant be awarded increased compensa- tion for unreasonable delay or refusal to pay pursuant to section 39-71-2907, MCA? We reverse. The facts are agreed upon by both sides. Hugh Bennett established Bennett Well Service in Cut Bank, Montana, in September 1975. On September 28, 1975, an employee of the State Fund ordered that compensation enrollment forms for Bennett Well Service be sent to Bennett's attorney and also to his accountant in Cut Bank. These forms were sent with a letter explaining the special endorsements required for employees not required to be covered by workers' compensa- tion insurance. The enrollment forms, together with Bennett's special election to cover himself as a sole employer, were received by the State Fund on October 3,
In June 1979 the appellant, Robert Bennett, a high school student who still resided in his father's home, began to work for his father at Bennett Well Service. On June 26 he fractured his leg while working. A first report of the injury was filed on July 2, 1979. On July 13, 1979, Hugh Bennett elected coverage for Robert and on July 31, which was the end of the first quarter of 1979 in which Robert had been employed, Bennett Well Service sent its quarterly reports and premiums, including a premium for Robert to the State Fund. All premiums, including that for Robert, were accepted. The State Fund denied coverage at a later date because the election had been made after the injury. In this case Bennett Well Service followed the proper procedures by submitting a quarterly report to the Division at the end of each quarter. There was no showing to the corporation or its agents that there was a different report- ing method for a family member residing in the employer's household. In refusing to grant appellant's request for coverage the State Fund denied the claim on the basis of the fact that Bennett Well Service had not elected compensation for Robert under the provisions of section 39-71-401(2)(c), MCA, which states: " -- ~ l o y m e n t sc o v e r e d a n d e m E -- y----- E m -- .................... lo ments exempted. (1) Except as provided in subsec- tion (2) of this section, the Workers' Compensation Act applies to all employers as defined in 39-71-117 and to all employees as defined in 39-71-118. An employer who has any employee in service under any appointment or contract of hire, expressed or implied, son, Robert Bennett. The q u a r t e r l y r e p o r t was f i l e d a t t h e
end o f t h e q u a r t e r , J u l y 3 1 , 1 9 7 9 , a s u s u a l .
The J u n e 26, 1979, i n j u r y was r e p o r t e d t o t h e D i v i -
s i o n on J u l y 2 , 1 9 7 9 , and a n e l e c t i o n of coverage f o r t h e
employer's family members dwelling in the employer's
h o u s e h o l d was f i l e d on J u l y 1 0 , 1 9 7 9 .
The Division argues that Robert Bennett was not
c o v e r e d on J u n e 2 6 , 1979, because (1) t h e e m p l o y e r d i d n o t
e l e c t c o v e r a g e u n t i l J u l y 1 0 , 1 9 7 9 , and ( 2 ) Robert Bennett
worked the summer of 1978 w i t h o u t coverage. But, Robert
Bennett testified that he would not have gone to work
without workers' compensation coverage. Large p l a c a r d s a t
h i s work p l a c e t o l d him a l l e m p l o y e e s w e r e c o v e r e d .
Respondent argues that the claimant should not be
a l l o w e d t o be i n s u r e d e x p o s t f a c t o ; t h a t the Division did
prescribe procedures for employees t o e l e c t coverage; and
t h a t t h e employer received f o r m s and a l e t t e r c l e a r l y ex-
p l a i n i n g t h a t some e m p l o y e e s were n o t c o v e r e d u n l e s s s p e c i a l
endorse m e n t s forms were completed p r i o r t o an i n j u r y .
The employer had endorsed the same form to be
covered, s o h e was o b v i o u s l y f a m i l i a r with the procedure.
The p a y r o l l r e p o r t s s e n t t o t h e e m p l o y e r e v e r y t h r e e m o n t h s
a l s o contained t h i s reminder:
"10. OTHER ENDORSEMENTS: Unless s p e c i f i c e n d o r s e m e n t s h a v e b e e n made, t h e f o l l o w i n g t y p e s o f employment a r e n o t c o v e r e d :
"1 . Members o f t h e e m p l o y e r ' s i m m e d i a t e family ( w i f e , husband, son or d a u g h t e r ) dwelling i n t h e employer's household.
"Include family members or household employees where s p e c i f i c e n d o r s e m e n t s a r e on file. oral or written, shall elect to be bound by the provisions of compensation plan No. 1, 2, or 3. Every employee whose employer is bound by the Workers' Compensation Act is subject to and bound by the compensation plan that has been elected by the employer. "(2) Unless the employer elects coverage for these employments under this chapter and an insurer allows such an election, the Workers' Compensation Act does not apply to any of the following employments:
"(c) employment of members of an employer's family dwelling in the employer's household;" The first and controlling issue in this cause is whether the Division of Workers' Compensation failed to publish rules governing the time and method of electing coverage for members of an employer's family dwelling in the employer's household. If rules were not published, can the Division deny benefits on the basis that no election was made to cover the claimant? The court found in its Finding of Fact No. 22, that, "the Division of Workers' Compensation has published rules concerning the way that the employer may elect to bring his employees within the provisions of 39-71-401." It is important to consider when the Division is notified of an employer's new employees. First, the Divi- sion sends the employer a list of premiums for each job classification. Then, the employer prepares his quarterly report to the Division, setting forth the names of the employees, the amount paid to the employees, and the type of work done by the employees. A check for the premiums and the quarterly report, are filed at the - of the quarter. end This is precisely what the employer, Hugh Bennett, did in this case for all of his employees, including his "10. OTHER COVERED ENDORSEMENTS: Include family members or household employees where specific endorsement forms are on file." ------------------- (Emphasis added.
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No. 80-348 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981
ROBERT BENNETT, Claimant and Appellant,
HUGH BENNETT, Employer and STATE COMPENSATION INSURANCE FUND, Defendant and Respondent.
Appeal from: Workers' Compensation Court Hon. William Hunt, Judge presiding. Counsel of Record: For Appellant: Hoyt and Trieweiler, Great Falls, Montana John Hoyt argued, Great Falls, Montana For Respondent: Garrity, Keegan and Brown, Helena, Montana Thomas Keegan argued, Helena, Montana
Submitted: October 20, 1981
Decided: DEC - 7 1981 ,
o&a; Filed: - - v7 1481
- Clerk Mr. Justice John Conway Harrison delivered the Opinion of the Court. This appeal is from a denial of benefits from the decision of the Workers' Compensation Court. Five issues are raised in this appeal: 1. If the Division of Workers' Compensation has not published rules governing the time and method of electing coverage for members of an employer's family dwelling in the employer's household, is the Division precluded from denying benefits to Robert Bennett on the basis that no election was made to cover him? 2. Is the State Fund equitably estopped from denying cover age? 3. Does section 39-71-401, MCA, violate due process because employers are not instructed on how to elect family coverage? 4. Does the family member exclusion deny equal protection? 5. Should appellant be awarded increased compensa- tion for unreasonable delay or refusal to pay pursuant to section 39-71-2907, MCA? We reverse. The facts are agreed upon by both sides. Hugh Bennett established Bennett Well Service in Cut Bank, Montana, in September 1975. On September 28, 1975, an employee of the State Fund ordered that compensation enrollment forms for Bennett Well Service be sent to Bennett's attorney and also to his accountant in Cut Bank. These forms were sent with a letter explaining the special endorsements required for employees not required to be covered by workers' compensa- tion insurance. The enrollment forms, together with Bennett's special election to cover himself as a sole employer, were received by the State Fund on October 3,
In June 1979 the appellant, Robert Bennett, a high school student who still resided in his father's home, began to work for his father at Bennett Well Service. On June 26 he fractured his leg while working. A first report of the injury was filed on July 2, 1979. On July 13, 1979, Hugh Bennett elected coverage for Robert and on July 31, which was the end of the first quarter of 1979 in which Robert had been employed, Bennett Well Service sent its quarterly reports and premiums, including a premium for Robert to the State Fund. All premiums, including that for Robert, were accepted. The State Fund denied coverage at a later date because the election had been made after the injury. In this case Bennett Well Service followed the proper procedures by submitting a quarterly report to the Division at the end of each quarter. There was no showing to the corporation or its agents that there was a different report- ing method for a family member residing in the employer's household. In refusing to grant appellant's request for coverage the State Fund denied the claim on the basis of the fact that Bennett Well Service had not elected compensation for Robert under the provisions of section 39-71-401(2)(c), MCA, which states: " -- ~ l o y m e n t sc o v e r e d a n d e m E -- y----- E m -- .................... lo ments exempted. (1) Except as provided in subsec- tion (2) of this section, the Workers' Compensation Act applies to all employers as defined in 39-71-117 and to all employees as defined in 39-71-118. An employer who has any employee in service under any appointment or contract of hire, expressed or implied, son, Robert Bennett. The q u a r t e r l y r e p o r t was f i l e d a t t h e
end o f t h e q u a r t e r , J u l y 3 1 , 1 9 7 9 , a s u s u a l .
The J u n e 26, 1979, i n j u r y was r e p o r t e d t o t h e D i v i -
s i o n on J u l y 2 , 1 9 7 9 , and a n e l e c t i o n of coverage f o r t h e
employer's family members dwelling in the employer's
h o u s e h o l d was f i l e d on J u l y 1 0 , 1 9 7 9 .
The Division argues that Robert Bennett was not
c o v e r e d on J u n e 2 6 , 1979, because (1) t h e e m p l o y e r d i d n o t
e l e c t c o v e r a g e u n t i l J u l y 1 0 , 1 9 7 9 , and ( 2 ) Robert Bennett
worked the summer of 1978 w i t h o u t coverage. But, Robert
Bennett testified that he would not have gone to work
without workers' compensation coverage. Large p l a c a r d s a t
h i s work p l a c e t o l d him a l l e m p l o y e e s w e r e c o v e r e d .
Respondent argues that the claimant should not be
a l l o w e d t o be i n s u r e d e x p o s t f a c t o ; t h a t the Division did
prescribe procedures for employees t o e l e c t coverage; and
t h a t t h e employer received f o r m s and a l e t t e r c l e a r l y ex-
p l a i n i n g t h a t some e m p l o y e e s were n o t c o v e r e d u n l e s s s p e c i a l
endorse m e n t s forms were completed p r i o r t o an i n j u r y .
The employer had endorsed the same form to be
covered, s o h e was o b v i o u s l y f a m i l i a r with the procedure.
The p a y r o l l r e p o r t s s e n t t o t h e e m p l o y e r e v e r y t h r e e m o n t h s
a l s o contained t h i s reminder:
"10. OTHER ENDORSEMENTS: Unless s p e c i f i c e n d o r s e m e n t s h a v e b e e n made, t h e f o l l o w i n g t y p e s o f employment a r e n o t c o v e r e d :
"1 . Members o f t h e e m p l o y e r ' s i m m e d i a t e family ( w i f e , husband, son or d a u g h t e r ) dwelling i n t h e employer's household.
"Include family members or household employees where s p e c i f i c e n d o r s e m e n t s a r e on file. oral or written, shall elect to be bound by the provisions of compensation plan No. 1, 2, or 3. Every employee whose employer is bound by the Workers' Compensation Act is subject to and bound by the compensation plan that has been elected by the employer. "(2) Unless the employer elects coverage for these employments under this chapter and an insurer allows such an election, the Workers' Compensation Act does not apply to any of the following employments:
"(c) employment of members of an employer's family dwelling in the employer's household;" The first and controlling issue in this cause is whether the Division of Workers' Compensation failed to publish rules governing the time and method of electing coverage for members of an employer's family dwelling in the employer's household. If rules were not published, can the Division deny benefits on the basis that no election was made to cover the claimant? The court found in its Finding of Fact No. 22, that, "the Division of Workers' Compensation has published rules concerning the way that the employer may elect to bring his employees within the provisions of 39-71-401." It is important to consider when the Division is notified of an employer's new employees. First, the Divi- sion sends the employer a list of premiums for each job classification. Then, the employer prepares his quarterly report to the Division, setting forth the names of the employees, the amount paid to the employees, and the type of work done by the employees. A check for the premiums and the quarterly report, are filed at the - of the quarter. end This is precisely what the employer, Hugh Bennett, did in this case for all of his employees, including his "10. OTHER COVERED ENDORSEMENTS: Include family members or household employees where specific endorsement forms are on file." ------------------- (Emphasis added. ) Respondent argues that since the employer personally endorsed one of these forms and received notice every three months, the employer received adequate notice. Thus, the Division's duty to publish rules notifying employers of the election procedure pursuant to section 39-71-2303, MCA, was complete. Section 39-71-203, MCA, gives the Division authority to "perform any and all things ... which are necessary" to administer the Workers' Compensation Act. Section 39-71- 2303, MCA, orders the Division to "prescribe the procedure by which the employers may elect to be bound by compensation plan No. 3, including the effective time of such election . . ." The Division failed to prescribe the proper proce- dure or rules other than reporting and paying procedures above. Therefore, Finding of Fact No. 22 by the Workers' Compensation Court is incorrect and unsupported by the evidence. The court obviously was misled. Hugh Bennett did exactly as instructed by the Division in following precisely the reporting and premium payment procedures outlined by the Division to provide coverage for his employees. The record shows that he notified the Division of (1) the accident; (2) a week or ten days later he elected to come under the plan; and (3) that he paid the necessary premium to cover for that period. The Division does not have rules informing plan 3 members of the time and method of electing coverage for members of an employer's family dwelling in the employer's household. Therefore, we reverse the Workers' Compensation Court and order the claim approved. The appellant's request
for increased compensation pursuant to section 39-71-2907, MCA, is denied.
We concur:
Chief Justice J"
Justices Mr. J u s t i c e Fred J . Weber d i s s e n t i n g :
I respectfully dissent. The r e s u l t of t h e m a j o r i t y
o p i n i o n i s t h a t R o b e r t B e n n e t t , a t e e n a g e son o f Hugh B e n n e t t ,
o f B e n n e t t Well S e r v i c e , w i l l be awarded w o r k e r s ' compensation
f o r h i s fractured leg. On i t s f a c e t h a t i s commendable.
U n f o r t u n a t e l y , t h e r e s u l t i s a t t a i n e d o n l y by d i s r e g a r d i n g
t h e s p e c i f i c s t a t u t o r y r e q u i r e m e n t s f o r o b t a i n i n g Workers'
Compensation c o v e r a g e i n Montana.
Following a r e s i g n i f i c a n t f a c t s from t h e r e c o r d :
J u n e , 1979 - R o b e r t B e n n e t t began work.
J u n e 26 - R o b e r t f r a c t u r e d l e g w h i l e working.
J u l y 2 - B e n n e t t Well S e r v i c e s u b m i t t e d e m p l o y e r ' s f i r s t r e p o r t of o c c u p a t i o n a l i n j u r y t o D i v i s i o n .
J u l y 1 0 - Family member endorsement s e n t t o D i v i s i o n by B e n n e t t W e l l S e r v i c e c o n t a i n i n g t h e e l e c t i o n t o i n c l u d e R o b e r t B e n n e t t and S c o t t B e n n e t t , s o n s of Hugh B e n n e t t , members of t h e e m p l o y e r ' s immediate f a m i l y , under Workers' Compensation. Endorsement accompanied by l e t t e r from B e n n e t t W e l l S e r v i c e a t t o r n e y and a f f i d a v i t of a c c o u n t a n t .
J u l y 18 - Division wrote Bennett W e l l S e r v i c e and i t s a t t o r n e y denying c o v e r a g e f o r R o b e r t ' s i n j u r y and s t a t i n g i n p a r t :
"When t h i s f i r m e n r o l l e d w i t h t h e S t a t e Fund a l e t t e r was forwarded t o them c a r e f u l l y e x p l a i n - i n g t h a t members of a n e m p l o y e r ' s f a m i l y d w e l l - i n g i n t h e e m p l o y e r ' s household were n o t c o v e r e d under t h e Workers' Compensation A c t , u n l e s s endorsements were f i l e d w i t h t h e Fund i n d i c a t i n g t h a t t h e employer wished t o c o v e r and pay p r e - miums on household employees. A copy of t h i s l e t t e r d a t e d September 29, 1975 t h a t w a s forward- e d t o B e n n e t t Well S e r v i c e i n c a r e of John P. Moore, Box 997, C u t Bank, Montana, i s e n c l o s e d . These endorsements were n e v e r f i l e d t o c o v e r t h i s man's s o n s and t h e premium h a s n e v e r been p a i d t o u s f o r t h e i r employment. The p a y r o l l r e p o r t s i n o u r f i l e i n d i c a t e t h a t t h e y have n e v e r been l i s t e d a s employees and p a y r o l l s have n o t been r e p o r t e d t o u s on t h e i r s a l a r i e s and premium h a s n o t been p a i d on them.
"The endorsement you f u r n i s h e d u s w i l l be e f f e c - t i v e J u l y 1 3 , 1979, and R o b e r t and S c o t t B e n n e t t w i l l b e c o v e r e d e f f e c t i v e a s of t h a t d a t e . How- e v e r , t h e r e i s no way I c a n e f f e c t c o v e r a g e t o Robert Bennett f o r h i s i n j u r y t o cover medical and compensation b e n e f i t s f o r h i s i n j u r y of J u n e 26, 1979."
J u l y 31 - B e n n e t t W e l l S e r v i c e s u b m i t t e d q u a r t e r l y r e p o r t , and w i t h i t p a i d premium f o r t h e two s o n s , R o b e r t and S c o t t .
B e f o r e d e n i a l of c o v e r a g e on J u l y 1 8 , t h e r e had been no
payment by B e n n e t t W e l l S e r v i c e of a premium f o r R o b e r t and
r e t e n t i o n by t h e D i v i s i o n of such premium payment. Therefore,
one c o u l d n o t c o n c l u d e t h a t i n s u r a n c e c o v e r a g e s h o u l d be
g r a n t e d b e c a u s e of t h e payment and r e t e n t i o n of premiums.
The m a j o r i t y o p i n i o n s t a t e s t h a t t h e c o n t r o l l i n g i s s u e
i s whether t h e D i v i s i o n of Workers' Compensation f a i l e d t o
p u b l i s h r u l e s g o v e r n i n g t h e time and method of e l e c t i n g
c o v e r a g e f o r members of a n e m p l o y e r ' s f a m i l y d w e l l i n g i n t h e
e m p l o y e r ' s household. The o p i n i o n r e f e r s t o s e c t i o n 39-71-
2303, MCA, s u g g e s t i n g t h a t s e c t i o n 39-71-2303 requires the
D i v i s i o n t o p r e s c r i b e r u l e s which a r e a p p l i c a b l e h e r e . We
r e s p e c t f u l l y p o i n t o u t t h a t s e c t i o n 39-71-2303 only r e f e r s
t o t h e p r o c e d u r e by which a n employer may e l e c t t o be bound
by compensation p l a n 3 -- t h a t b e i n g t h e p l a n under which a n
employer e l e c t s t o be covered by t h e S t a t e Fund. I n no way
i s t h a t applicable here. That s e c t i o n does n o t r e q u i r e t h e
p r o m u l g a t i o n of r u l e s which a p p l y where t h e r e i s t o b e a n
e l e c t i o n f o r c o v e r a g e of a f a m i l y member. I t is true that
t h e Workers1 Compensation C o u r t i n c o r r e c t l y found i n i t s
F i n d i n g of F a c t 2 2 t h a t t h e D i v i s i o n had p u b l i s h e d r u l e s
c o n c e r n i n g t h e way a n employer may e l e c t t o b r i n g h i s employees
w i t h i n t h e p r o v i s i o n s of t h e Act. N s p e c i f i c r u l e was s e t o
f o r t h by t h e D i v i s i o n , a l t h o u g h forms f o r e l e c t i o n a r e p r o v i d e d .
However, t h e m a j o r i t y o p i n i o n h a s n o t s u g g e s t e d why t h i s
s h o u l d be c l a s s e d a s r e v e r s i b l e e r r o r . B e n n e t t W e l l S e r v i c e s t a r t e d i n b u s i n e s s i n 1975. At
t h a t t i m e , t h e s t a t u t o r y p r o v i s i o n s e x c l u d i n g c e r t a i n employments
from c o v e r a g e by t h e Workers' Compensation A c t were i n
e f f e c t i n t h e same manner a s today. S e c t i o n 39-71-401, MCA,
makes i t c l e a r t h a t t h e l e g i s l a t u r e d e c i d e d t h a t t h e Workers'
Compensation laws s h o u l d n o t a p p l y t o c e r t a i n t y p e s of
employment u n l e s s a n employer f i r s t t a k e s a n a f f i r m a t i v e
s t e p t o o b t a i n coverage:
" ( 2 ) U n l e s s t h e employer e l e c t s c o v e r a g e f o r t h e s e employments under t h i s c h a p t e r and a n i n s u r e r a l l o w s such a n e l e c t i o n , - Workers' the --- Compensation Act does n o t a p p l y - any of -e f o l l o w i n g employments: to - th
" ( a ) household and d o m e s t i c employment; " ( b ) c a s u a l employment a s d e f i n e d i n 39-71-116 (3);
" ( c ) employment - members - - e m p l o y e r ' s of of a n f a m i l y d w e l l i n g - - e m p l o y e r ' s household; i n the
" ( d ) employment of s o l e p r o p r i e t o r s o r working members of a p a r t n e r s h i p ;
" ( e ) employment f o r which a r u l e of l i a b i l i t y f o r i n j u r y , occupational disease, o r death i s p r o v i d e d under t h e l a w s of t h e U n i t e d S t a t e s ;
" ( f ) any p e r s o n performing s e r v i c e s i n r e t u r n f o r a i d o r sustenance only;
" ( g ) employment w i t h any r a i l r o a d engaged i n i n t e r s t a t e commerce, e x c e p t t h a t r a i l r o a d con- s t r u c t i o n work s h a l l be i n c l u d e d i n and s u b j e c t t o t h e p r o v i s i o n s of t h i s c h a p t e r . " S e c t i o n 39- 71-401 ( 2 ) , MCA. (Emphasis s u p p l i e d . )
The r e s u l t of t h e m a j o r i t y o p i n i o n i s t o n e g a t e t h e
e s s e n t i a l p r o v i s i o n s of s e c t i o n 39-71-401(2), MCA. T h a t law
r e q u i r e s a n e l e c t i o n of c o v e r a g e by a n employer b e f o r e t h e
Workers' Compensation Act s h a l l a p p l y t o c e r t a i n d e s c r i b e d
employments. The m a j o r i t y o p i n i o n w i l l a l l o w employers t o
a d o p t a " w a i t and s e e " approach t o e l e c t i o n s f o r c o v e r a g e .
The m a j o r i t y o p i n i o n s u g g e s t s t h a t an employer of household and d o m e s t i c h e l p , c a s u a l employees, members of a n e m p l o y e r ' s
f a m i l y , s o l e p r o p r i e t o r s , working members of a p a r t n e r s h i p ,
and p e r s o n s p e r f o r m i n g s e r v i c e s f o r a i d o r s u s t e n a n c e o n l y
s h o u l d w a i t u n t i l someone i s i n j u r e d b e f o r e making a n e l e c t i o n
f o r coverage. A t t h a t point, t h e employer c a n a p p a r e n t l y
e l e c t c o v e r a g e and have t h e c o v e r a g e e x t e n d e d t o a n i n j u r y
which h a s a l r e a d y t a k e n p l a c e . The s a v i n g s t o employers i n
premiums i s o b v i o u s . This decision a c t u a l l y reverses the
r e q u i r e m e n t s of t h e law b e c a u s e i t f i n d s t h a t t h e A c t a p p l i e s
t o a n i n j u r y even though t h e r e h a s been no e l e c t i o n of
c o v e r a g e and even though t h e Act s t a t e s t h a t i t " d o e s n o t
apply " W r e s p e c t f u l l y s u g g e s t t h a t i n t h e a b s e n c e of a n e
advance e l e c t i o n of c o v e r a g e f o r R o b e r t B e n n e t t , t h e r e was
no c o v e r a g e a t t h e t i m e of h i s i n j u r y and t h e d e c i s i o n of
t h e Workers' Compensation C o u r t s h o u l d be a f f i r m e d .
I concur i n t h e f o r e g o i n g d i s s e n t o f P4r. J u s t i c e F r e d J . Weber.
9, Chief J u s I c e Y@IrA &