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Hearing No. 3331

Helena, Montana

June 6, 2003




WCC No. 2000-0207

The status conference in the above-entitled matter came on Friday, June 6, 2003, at 10:10 a.m., in the Workers' Compensation Court, Helena, Montana. The Honorable Mike McCarter, Judge of the Workers' Compensation Court, presided. Petitioner was represented by Mr. Thomas J. Murphy. Respondent was represented by Mr. David A. Hawkins and Mr. Bradley J. Luck. Also appearing on behalf of the Montana State Fund were Mr. Thomas E. Martello, Mr. Greg E. Overturf, Ms. Nancy Butler, and Mr. Thomas J. Harrington. At the Court's request, Mr. Mark E. Cadwallader appeared on behalf of the regulatory agency of the Department of Labor and Industry. Mr. Larry W. Jones appeared as an observer on behalf of Liberty Northwest and Mr. Oliver H. Goe appeared as an observer on behalf of Montana Municipal Insurance Authority and Montana Workers' Compensation Trust. The court reporter in this matter was Ms. Lisa Lesofski.

The Court called this status conference to determine what issues need to be addressed and to establish a plan of action.

During the conference, the following issues were identified:

(1) Is the decision in Stavenjord is retroactive?

(2) What is the entitlement date for purposes of prospective application of the decision in Stavenjord?

(3) Does the failure to request common fund attorney fees or class certification in the pre-remand proceedings bar post-remand requests for common fund fees or class certification?

(4) Does the decision in Stavenjord create a common fund, and if so what is the extent of that common fund?

Some or all of these issues are or may be present in other of the following cases:

Flynn v. Montana State Fund, WCC No. 2000-0222

Carl Miller v. Montana State Fund, WCC No. 2003-0771

Schmill v. Liberty Northwest Ins. Corp., WCC No. 2001-0300

Ruhd v. Liberty Northwest Ins. Corp., WCC No. 2002-0222

Mathews v. Liberty Northwest Ins. Corp, WCC No. 2001-0294

Wild v. Montana State Fund, WCC No. 2001-0286

Miller v. Liberty Mutual Fire Ins. Co., WCC No. 2000-0174

Mr. Luck indicated the State Fund's intention to develop and present evidence concerning the difficulties which may arise in applying the Stavenjord decision retroactively and applying the Chevron test, assuming it applies. The same evidence may also be relevant to whether there is a common fund.

At the conclusion of the hearing, the Court directed the State Fund to identify the kind of information it wishes to develop and obtain some sample information. Mr. Murphy shall be kept informed about this process, which shall be completed by July 3, 2003. A status report shall be made to the Court on July 11, 2003, either in writing or by way of another in-person status conference. The parties shall work together to establish an agreed set of facts or present information, so far as possible, by way of affidavit and documentation. Following the status report, the Court will determine the next steps to be taken and establish a briefing schedule.

The State Fund shall prepare a confidentiality agreement and order which will allow Mr. Murphy to participate in the identification process. The agreement and order shall be forwarded to the Court for adoption.

Mr. Luck stipulated that the claimant in this case, Debra Stavenjord, may be paid the benefits due her without waiving her common fund claims. Mr. Hawkins advised that he will request a check for the amount due claimant.

There was also discussion of consolidation of or intervention in the various cases. The Court determined that the best way to handle these cases is for any intervenor already appearing to be limited to participation in briefing of the common legal issues and by permitting counsel in all cases to file amicus briefs in cases in which they do not appear. To that end, the Court will post a copy of this transcript on its WEB site and will also post relevant briefs and orders in this case, the cases previously mentioned, and the Fisch, Frost and Rausch cases.

Court adjourned at 11:50 a.m.

Clerk of Court

By: Clara Wison
Deputy Clerk of Court

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