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IN THE WORKERS' COMPENSATION
COURT OF THE STATE OF MONTANA
2000
MTWCC 14
WCC
No. 2000-0048
EVERETT
D. SCHELIN
Petitioner
vs.
CIGNA
a/k/a ACE
Respondent/Insurer
for
STRUCTURAL
SYSTEMS, INCORPORATED
Employer.
MEMORANDUM AND ORDER DISMISSING
PETITION
Summary:
Claimant who had not mediated dispute with insurer filed petition seeking
mandatory writ of injunction ordering insurer to authorize surgery.
Held:
Requirement that parties mediate workers compensation dispute prior
to filing petition in WCC is jurisdictional. Petition asking WCC to
order "emergency" surgery without requiring mediation dismissed.
WCC suggests claimant seek expedited mediation.
Topics:
Constitutions, Statutes,
Regulations and Rules: Montana Code: 39-71-2408, MCA. Requirement
that parties mediate workers compensation dispute prior to filing petition
in WCC is jurisdictional. Petition asking WCC to order "emergency"
surgery without requiring mediation dismissed. WCC suggests claimant
seek expedited mediation.
Jurisdiction: Mediation.
Requirement that parties mediate workers compensation dispute prior
to filing petition in WCC is jurisdictional. Petition asking WCC to
order "emergency" surgery without requiring mediation dismissed.
WCC suggests claimant seek expedited mediation.
Mediation. Requirement
that parties mediate workers compensation dispute prior to filing petition
in WCC is jurisdictional. Petition asking WCC to order "emergency"
surgery without requiring mediation dismissed. WCC suggests claimant
seek expedited mediation.
Procedure: Emergency
Petition. Requirement that parties mediate workers compensation
dispute prior to filing petition in WCC is jurisdictional. Petition
asking WCC to order "emergency" surgery without requiring
mediation dismissed. WCC suggests claimant seek expedited mediation.
New filing of emergency petition should be supported by letter from
physician addressing urgency of situation, not just need for surgery.
¶1 The petition
in this matter seeks an emergency hearing to determine claimant's entitlement
to arm surgery, and states, inter alia:
Because this is an emergency
situation and petitioner believes the time involved in mediation will
dangerously prolong the surgery so that his permanent impairment will
be increased, petitioner requests the Court issue a mandatory writ of
injunction ordering insurer to authorize this necessary surgery.
(Petition for Emergency Hearing
¶ 5.) The quoted paragraph shows that claimant has not mediated the claim.
¶2 As should be apparent from
the following statutes, mediation is a jurisdictional prerequisite to
this Court's consideration of any petition:
39-71-2401. Disputes
-- jurisdiction -- settlement requirements -- mediation. (1)
A dispute concerning benefits arising under this chapter or chapter
72, other than the disputes described in subsection (2), must be brought
before a department mediator as provided in this part. If a dispute
still exists after the parties satisfy the mediation requirements in
this part, either party may petition the workers' compensation court
for a resolution.
. . . .
39-71-2408. Mandatory,
nonbinding mediation. (1) Except as otherwise provided, in
a dispute arising under chapter 71 or 72 of this title, the insurer
and claimant shall mediate any issue concerning benefits and the mediator
shall issue a report following the mediation process recommending a
solution to the dispute before either party may file a petition
in the workers' compensation court. [Emphasis added.]
. . . .
39-71-2905. Petition
to workers' compensation judge -- time limit on filing. (1)
A claimant or an insurer who has a dispute concerning any benefits under
chapter 71 of this title may petition the workers' compensation judge
for a determination of the dispute after satisfying dispute
resolution requirements otherwise provided in this chapter.
. . . After parties have satisfied dispute resolution requirements
provided elsewhere in this chapter, the workers' compensation
judge has exclusive jurisdiction to make determinations concerning disputes
under chapter 71, except as provided in 39-71-317 and 39-71-516. [Emphasis
added.]
No exceptions are made. Thus,
petitioner must mediate his claim regarding surgery before this Court
can assume jurisdiction and schedule any hearing.
¶3 I suggest that petitioner
immediately seek mediation and request that those proceedings be conducted
on an expedited basis. In doing so, and in filing any new petition with
the Court, it will be helpful if claimant attaches a letter from his physician
addressing the urgency of the surgery. I note that letter attached
to his current petition only indicates the need for surgery.
ORDER
¶4 The petition is dismissed
without prejudice.
DATED in Helena, Montana,
this 21st day of March, 2000.
(SEAL)
\s\ Mike
McCarter
JUDGE
c: Mr. Robert C. Kelleher
Ms. Michelle Fairclough
Mediation Unit
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