IN THE WORKERS' COMPENSATION
COURT OF THE STATE OF MONTANA
1996 MTWCC 58
WCC No. 9607-7571
COMPENSATION INSURANCE FUND
ORDER DISMISSING APPEAL
appealed from order of DOL denying his request for an extension of time
in which to file a workers' compensation claim. Respondent moved to
dismiss on ground that jurisdiction still lies with DOL, not with WCC.
motion to dismiss is granted. Claimant's appeal is premature because
the DOL order was not a final and appealable order. The Montana Administrative
Procedures Act (MAPA) requires that claimant be afforded a contested
case hearing within the DOL. Section 39-71-204, MCA (1995), of the WCA
states the DOL has continuing jurisdiction over its orders before they
Failure to Exhaust Administrative Remedies. In case alleging 1995
injury, claimant failed to exhaust contested case procedure before
DOL where he filed appeal from DOL's denial of his request for an
extension of time, but had not requested a hearing on that denial
within the DOL.
The present case is an appeal
from an order of the Department of Labor and Industry denying the appellant's/claimant's
request for an extension of time in which to file his workers' compensation
claim. The respondent, State Compensation Insurance Fund (State Fund),
moves to dismiss on the ground that jurisdiction over appellant's request
still lies with the Department of Labor and Industry, not with the Court.
The salient facts, as alleged
by claimant and assumed to be true for purposes of the appeal, Farris
v. Hutchinson, 254 Mont. 334, 336, 838 P.2d 374, 376 (1992), are
set forth in claimant's Appeal from 6/21/96 MDOLI-ERD Order Denying
Waiver of Claim Time Period ("Appeal") and Attached Exhibits, and a
June 21, 1996 Order Denying Waiver of Claim Time Period. They are as
1. Claimant suffered an industrial
injury on October 15, 1992, when he slipped at work. He was treated
and diagnosed as suffering from low-back strain.
2. Claimant submitted a written
incident report to his employer (Appeal Ex. B) but did not file a written
workers' compensation claim within one year following the injury.
3. On July 11, 1995, which
is less than three years after the accident, the claimant's employer
filed an Employer's First Report. In relevant part, the report related:
Employee describes lower
back pain of gradual onset, for approximately one month prior to pain
changing, and running down (L) leg and into (L) foot, causing him
to seek medical advice. Keith state[s] no specific incident contributing
to this current onset of pain. He feels that it is part of an
old injury in 10/92, when he slipped on a pool of urine on [the] floor.
(Appeal Ex. A.) Claimant,
as well as the employer, signed the claim. (Id.) The matter
was thereafter treated as an occupational disease. (Appeal at 3.)
4. By July 1995 claimant
was no longer able to work on account of low-back pain and resumed
5. In April 1996, more
than three years after the accident, claimant submitted a written
claim for compensation. The claim was denied by respondent, State
Compensation Insurance Fund, as untimely. (Appeal Ex. H.)
6. Pursuant to section
39-71-601, MCA, claimant thereafter petitioned the Department of Labor
and Industry (Department) for a waiver of the one-year filing requirement.
7. On June 21, 1996, the
Department issued an Order Denying Waiver of Claim Time Period. The
Department mailed the order to the parties but did not set up a file
on the matter. (July 17, 1996 letter of Gary Holt to Judge McCarter.)
However, a copy of the order has been provided to the Court by the
8. The Department's order
was signed by Carol Gleed, a workers' compensation benefits examiner
for the Workers' Compensation Claims Assistance Bureau, which is a
bureau within the Employment Relations Division of the Department.
9. The order
denied the requested extension on the ground that the Department lacked
jurisdiction to extend the time for filing beyond three years:
can ONLY GRANT AN EXTENSION UP TO A PERIOD OF 3 (three) YEARS AFTER
THE ACCIDENT. THE FILING OF CLAIM EXCEEDS OUR STATUTORY AUTHORITY
TO GRANT AN EXTENSION. [Capitals in original.]
went on to notify the parties as follows:
is signed by the Claims Examiner Supervisor of the Dispute Resolution
Bureau under delegated authority of the Administrator of the Employment
Relations Division of the Department of Labor & Industry. Any
party in interest may appeal this order to the Hearings Unit, Legal
Services Division, P.O. Box 1728, Helena, Montana 59624.
uncertain whether the Department could hold a hearing regarding his
request, the claimant then filed both a request for hearing with the
Department and an appeal to this Court. (Response to Motion to Dismiss
The claimant requests the
Court to overturn the Department's denial of an extension of time for
filing his claim. His appeal, however, is premature since the Department's
order was not a final and appealable order. Thus, he has failed to exhaust
his administrative remedies.
The Montana Administrative
Procedure Act (MAPA) provides in section 2-4-601(1), MCA, that "[i]n
a contested case, all parties must be afforded an opportunity for hearing
. . . ." MAPA defines a "contested case" as "a proceeding before an
agency in which a determination of legal rights, duties, or privileges
of a party is required by law to be made after an opportunity for hearing."
§ 2-4-102(4), MCA.
Provisions within the Workers'
Compensation Act provide for a right to hearing in matters over which
the Department has adjudicatory jurisdiction. Section 39-71-204, MCA,
or amendment by department of its orders, decisions, or awards --
effect -- appeal. (1) The department has continuing jurisdiction
over all its orders, decisions, and awards and may, at any time, upon
notice, and after opportunity to be heard is given to the parties
in interest, rescind, alter, or amend any such order, decision, or
award made by it upon good cause appearing therefor.
(2) Any order, decision,
or award rescinding, altering, or amending a prior order, decision,
or award has the same effect as original orders or awards.
(3) If a
party is aggrieved by a department order, the party may appeal the dispute
to the workers' compensation judge.
Subsection (1) is all encompassing
in that it refers to all Department orders, thus vesting the
Department with jurisdiction to change an order whether or not the original
order was considered final. The subsection specifically provides a right
to a hearing before final agency action.
The legislature's intention
to afford parties a right to a hearing in cases before the Department
is further evidenced by the specific grant of judicial review in subsection
(3). Under the Montana Administrative Procedure Act, judicial review
is available only in contested cases. Nye v. Department of Livestock,
196 Mont. 222, 226, 639 P.2d 498, 500-501 (1982).
Pursuant to its rulemaking
powers, § 39-71-203(2), MCA, the Department has adopted regulations
implementing the right to hearing. ARM 24.29.207(2) defines a contested
case as encompassing "any disputed determination of legal rights, duties
or privileges" and ARM 24.29.207(6) provides that such cases are governed
by the Attorney General's model rules for contested cases. Those rules
provide for a hearing. ARM 1.3.212 and 1.3.219. Further, ARM 24.29.215
contains language which shows that any determination made without a
hearing is not a final, appealable order. The rule
provides in relevant part:
(2) A party seeking a contested
case hearing under ARM 24.29.207 must make a written request to the
division [Department](1) for a contested
case hearing within thirty days of notice of the results of an administrative
review or within ninety days of notice of adverse action.
(3) A party
seeking judicial review of a final order of the division [Department]
after a contested case hearing must file a
petition with the workers' compensation court within thirty days after
notice of the final order. [Italics and bold added for emphasis.]
"Administrative review" is
an informal review of "any division [Department] order" by the Commissioner
of Labor or her designee and is governed by ARM 24.29.206. After
or in lieu of such informal review, the order is subject to a contested
Prior to judicial review
the claimant is required to exhaust his administrative remedies. B.G.M.
Enterprises v. Montana Dept. of Social and Rehabilitation Services,
673 P.2d 1205, 1206 (Mont. 1983.) He has not done so, therefore
his appeal must be dismissed. Id.
Upon remand the Department
shall conduct a hearing as provided by statute and the Department's
rules. After hearing it shall make a final determination concerning
The Department must also
address claimant's contention that he presented a written claim within
the additional two years by which the Department may extend the filing
deadline and that his request for extension therefore falls within the
Department's express jurisdiction. His contention is based on the Employer's
First Report, Which Was Submitted less than Three Years after the Industrial
Accident and Was Signed by Both the Employer and Claimant. In Scott
V. Utility Line Contractors, 226 Mont. 154, 734 P.2d 206 (1987),
the Supreme Court Considered Whether an Employer's First Report completed
within one year of an industrial accident satisfied the one-year limitation
of section 39-71-601(1), MCA. It held that the claimant's participation
in preparing the report, which he did not sign, and his submission of
a medical report satisfied the claim filing requirement under the section.
A year later, in Weigand v. Anderson-Meyer Drilling Co., 232
Mont. 390, 758 P.2d 260 (1988), the Supreme Court reached the same conclusion
where, within the one-year limitation, the claimant assisted in preparing
the Employer's First Report, Although He Too Failed to Sign It, and
Claimant's Physician Submitted an Attending Physician's First Report.
In this Case, the Employer's First Report is dated July 11, 1995, and
is signed by claimant. Claimant also asserts that the
employer paid medical bills related to her 1992 accident. The Department
must determine whether the report is authentic and accurate, whether
it and other information provided to the employer provides sufficient
notice of the accident to the employer, and whether it is sufficient
under the rationale of Scott and Weigand.
ORDER AND JUDGMENT
For the reasons set forth
in the foregoing discussion, IT IS HEREBY ORDERED AND ADJUDGED that
the appeal in this matter be and is hereby dismissed without
prejudice. After a hearing and final decision by the Department
of Labor and Industry both parties are free to appeal the Department's
final decision. If the Department determines that it lacks jurisdiction,
claimant may also file a petition invoking the Court's original jurisdiction.
This JUDGMENT is certified
as final for purposes of appeal to the Montana Supreme Court.
DATED in Helena, Montana,
this 26th day of August, 1996.
c: Mr. Howard Toole
Mr. Daniel J. Whyte
Ms. Christine L. Noland
Date Submitted: August 5, 1996
CASES (1) A contested case under Title 39, chapter 71, MCA, involving
a dispute by a claimant or an insurer concerning any benefits provided
under that chapter is administered in accordance with rules authorized
by the workers' compensation court under ARM Title 2, chapter 52,
(2) A contested case under
Title 39, chapter 71, MCA, involving any disputed determination of
legal rights, duties or privileges other than those in rule 24.29.207(1)
or (3) is administered by the workers' compensation division in accordance
with rule 24.29.207(6). Such cases include but are not limited to:
(a) disputes regarding
attorneys' fee agreements in accordance with section 39-71-613, MCA;
(b) disputes regarding
insurance premium payments to the state compensation insurance fund;
(c) disputes regarding
state compensation insurance fund premium rates;
(d) disputes regarding
wage equivalency determinations made by the division;
(e) disputes regarding
applications of independent contractors not to be bound by workers'
compensation coverage pursuant to section 39-71-401, MCA;
(f) disputes regarding
applications by corporate officers not to be bound by workers' compensation
coverage pursuant to section 39-71-410, MCA;
(g) disputes concerning
certification of vocationally handicapped persons;
(h) disputes concerning
payment of benefits or liability involving the subsequent injury fund;
(i) disputes concerning
payments to medical providers when benefits available directly to
claimants are not an issue.
(3) A contested case under
Title 39, chapter 71, MCA, concerning employment classifications assigned
to an employer by an insurer is administered by the classification
and rating committee in accordance with section 33-16-1012, MCA.
(4) A contested case under
Title 39, chapters 72 or 73, or Title 53, chapter 9, MCA, is administered
by the workers' compensation division in accordance with 24.29.207(6).
(5) A contested case under
Title 50, chapters 71, 72, 73, 74 or 76 is administered by the workers'
compensation division in accordance with rule 24.29.207(6).
(6) The workers' compensation
division hereby adopts and incorporates by reference the attorney
general's model procedural rules 8 through 21 and 28 found in ARM
1.3.212 through 1.3.225 and in ARM 1.3.233, which set forth contested
case procedures for the division.
(7) The workers' compensation
court is an appeal court for final decisions made by the workers'
compensation division pursuant to rule 24.29.207(2) and (4). Final
decisions pursuant to rule 24.29.207(5) are appealed in accordance
with Title 2, chapter 4, part 7, MCA. [Effective 7/29/83.]
24.29.215 TIME LIMITS
(1) A party seeking administrative review under ARM 24.29.206 must
make a written request for administrative review to the division within
ninety days of notice of adverse action.
(2) A party seeking a
contested case hearing under ARM 24.29.207 must make a written request
to the division for a contested case hearing within thirty days of
notice of the results of an administrative review or within ninety
days of notice of adverse action.
(3) A party seeking judicial
review of a final order of the division after a contested case hearing
must file a petition with the workers' compensation court within thirty
days after notice of the final order.
(4) A party is considered
to have been given notice on the date a written notice is personally
delivered or three days after a written notice is mailed to him. A
request for administrative review, contested case hearing, or judicial
review must be received in the division or court within the time limits
set forth above. The time limits for request for administrative review
or contested case hearing may be extended by the division for good
cause. [Effective 7/31/87.]
Department regulations cited and quoted in this Order refer to the old
"Division" of Workers' Compensation and its administrator. The Division
was abolished in 1989 and its duties transferred to the Department of
Labor, however, many of the Department's regulations, including those
cited herein, were just recently amended, effective June 30, 1996, to
reflect this change.