JAMES KELLY COAKLEY

Petitioner

vs.

ITT HARTFORD INSURANCE COMPANY and
STATE COMPENSATION INSURANCE FUND

Respondents/Insurers for

OLSTEN STAFFING and McCALL POOLS

Employers.

Respondent ITT-Hartford has moved to dismiss petitioner's claim regarding his choice of a treating physician. Respondent alleges that the issue was not mediated. Petitioner disagrees.

Mediation is a prerequisite to the filing of a petition. § 39-71-2401 and -2905, MCA. All issues presented in a petition must have been mediated. Any issue that has not been mediated cannot be considered by the Court.

I have reviewed the information supplied by the parties concerning the issues mediated. Petitioner's assertion that issues regarding a change in treating physician were mediated is unsupported. While petitioner's Supplemental Mediation Petition mentions that he has chosen a physician to perform proposed surgery, it does not indicate that the insurer refused to acknowledge a change in treating physician and does not request that his choice of treating physician be mediated. (See Ex. 3 to Petitioner's Brief in Opposition to Respondent/insurer's Motion to Dismiss.) Moreover, the mediator's report states, "There has been no mediation of the issue whether a change in physician is appropriate . . . ." (Respondent/insurer ITT-Hartford's Reply Brief in Support of Motion to Dismiss at 2.) 

The claim regarding petitioner's choice of treating physician is dismissed on account of his failure to mediate that issue.

Dated in Helena, Montana, this 31st day of October, 1995.

(SEAL)

/s/ Mike McCarter
JUDGE

c: Mr. Paul E. Toennis
Mr. William O. Bronson
Mr. Charles G. Adams
Submitted Date: October 30, 1995