Jurisdiction: Mediation


Charlson v. Montana State Fund [07/01/10] 2010 MTWCC 23 Because § 39-71-2411(7), MCA, requires neither a written rejection of the mediator’s recommendation nor specific verbiage to reject the recommendation, Petitioner’s letter to the mediator in which he indicated that he would file a petition for hearing, satisfied the Court that Petitioner had rejected the mediator’s recommendation.  Accordingly, the Court rejected Respondent’s motion to dismiss for lack of subject matter jurisdiction.

Burke v. Roseburg Forest Products [09/14/09] 2009 MTWCC 32 Where a department mediation occurred and a mediator’s report was eventually issued, but the parties did not inform the mediator whether the recommendation had been accepted or rejected until the Court prompted the parties to do so, the Court determined that, although the case had proceeded for two months from the time the petition was filed, if it were to continue, it would do so under a cloud of uncertainty as to whether jurisdiction had been lacking from the inception. Therefore, the Court dismissed the petition without prejudice.

Horizon Custom Homes v. UEF [02/14/07] 2007 MTWCC 8 On its face, § 39-71-520, MCA, precludes mediation unless requested within the 90-day time limit. Since the uninsured employer failed to do so and since mediation is in turn a jurisdictional prerequisite to this Court’s jurisdiction, James v. UEF, 2002 MTWCC 51, ¶ 4, failure to request mediation within 90 days prevents this Court from reviewing a UEF determination.
Kutzler v. Montana State Fund [01/26/05] 2005 MTWCC 5 Workers' Compensation Court lacks jurisdiction over a petition for workers' compensation benefits where the parties have not completed mandatory mediation. Preston v. Transportation Ins. Co., 2004 MT 339, §§ 39-71-2905 and -2408(1), MCA (2001).
Kutzler v. Montana State Fund [01/26/05] 2005 MTWCC 5 While in some past cases the Workers' Compensation Court has simply stayed proceedings where mediation is incomplete, henceforth all petitions where mandatory mediation has not been completed will be dismissed
Flynn v. UEF and Casterline [10/21/04] 2004 MTWCC 71 Since section 39-71-520, MCA (2001, 2003), clearly and expressly states that a determination of the Uninsured Employers' Fund is final unless a request for mediation is made within ninety days of the determination, mediators of the Department of Labor and Industry lack jurisdiction to consider a late request. Lacking a timely request for mediation, any mediation which might take place is void and fails to satisfy the mediation requirement which is a prerequisite to commencing any petition in the Workers' Compensation Court. §§ 39-71-2408 and -2905, MCA (2001, 2003). Thus, the Workers' Compensation Court lacks jurisdiction to entertain a petition where the petitioning party has failed to request mediation in a timely fashion. Affirmed Flynn v. UEF, 2005 MT 269
Taves v. AIU [6/16/03] 2003 MTWCC 43 Mediation is a jurisdictional prerequisite to filing a petition in the Workers' Compensation Court.
Taves v. AIU [6/16/03] 2003 MTWCC 43 A denial of death benefits must be mediated prior to petitioning the Workers' Compensation Court for such benefits. Mediation of temporary total disability and medical benefits during the decedent's lifetime does not satisfy the mediation requirements. Burner v. Uninsured Employers' Fund, 1998 MTWCC 81 and Dunn v. Indemnity Insurance Company of North America, 2002 MTWCC 38 are distinguished. Those cases involved denials of liability and merely held that mediation of the denial encompassed subjacent or subsumed issues regarding the benefits due on account of the claim. Where a claim has been accepted and benefits paid during the deceased's lifetime and the request for death benefits is denied for a lack of causal connection between death and the occupational disease, that denial is a separate and distinct issue which must be mediated.
Thompson v. Liberty NW Ins. [5/29/03] 2003 MTWCC 37 Mediation is a prerequisite to bringing a petition in the Workers' Compensation Court, therefore, unmediated issues must be dismissed or stayed pending mediation.
Schelin v. Cigna [3/21/00] 2000 MTWCC 14 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.
State Fund v. Martin J. Douma [6/29/99] 1999 MTWCC 39 Petition filed by insurer to adjudicate subrogation interests was dismissed because mediation had not been conducted. Contrary to insurer's argument, following 1991 amendments to section 39-71-414(5), MCA, the WCC, not the Department of Labor, had jurisdiction to adjudicate subrogation issues. Since the WCC had jurisdiction over the subrogation issue ab initio, the mediation provisions applicable to the WCC on the date of the injury also apply. See, §39-71-2401(1), MCA (1993).
Nelson v. State Compensation Insurance Fund [4/4/96] 1996 MTWCC 29 Although respondent moved to dismiss petition for failure to mediate, affidavit from claimant’s counsel indicated that two mediation conferences were held, but no mediation report issued where respondent had asked for additional medical information, which claimant cooperated in allowing respondent to obtain. Although section 39-71-2411(5), MCA (1995) and ARM 24.28.108(2), require that a mediation report issue within ten days, there are provisions for postponement, but not unilateral postponement. The parties are directed to contact the mediator and request that a report issue forthwith. They should provide any additional information they wish to provide to the mediator.
Liberty Mutual Fire Ins. Co. v. Blancher [2/9/96] 1996 MTWCC 15 Sua sponte, the WCC notes it has no jurisdiction over interim benefits matter under 1995 version of section 39-71-610, MCA, where mediation has not taken place. Subject matter jurisdiction cannot be waived nor conferred by consent of a party where there is no basis for jurisdiction under the law.
Davis v. Asarco, Inc. [1/8/96] 1996 MTWCC 4 Where petition was filed prior to completion of mediation process, but mediation process was complete (including issuance of mediation report and rejection by claimant) prior to filing deadline for particular WCC trial term, motion to dismiss petition for failure to mediate was denied. Except in cases of repeated abuse, the Court typically will not dismiss petitions for failure to mediate since dismissal would result in refiling and creation of additional paperwork for the Court. Where the mediation process is not completed prior to the filling deadline for a particular term, however, the Court will vacate the trial setting and reset trial for the next term.
Coakley v. ITT Hartford Ins. Co. and State Compensation Ins. Fund [10/31/95] 1995 MTWC 84 Workers' Compenation Court lacks jurisdiction to consider any issue not mediated. Where petitioner's mediation petitions do not request mediation regarding his choice of treating physician, and mediator's report states there has not been mediation of issue of change in physician, that issue is not properly before the Court and is dismissed.
McNeese v. State Compensation Ins. Fund/Dep't of Labor & Industry [10/03/95] 1995 MTWCC 74 Where the record indicates that no written mediation recommendation ever issued because claimant agreed to see a physician, but has since refused to see the physician, the mediator must now issue a recommendation and the Workers’ Compensation Court lacks jurisdiction until the mediation report issues.
Stoller v. State Compensation Ins. Fund [08/10/95] 1995 MTWCC 59 Section 39-71-2411(6), MCA (1995) requires that at least one party notify the mediator within 45 days of mailing of the mediation report whether the mediation recommendation is accepted or rejected.  Where neither party complies, and a petition is filed with the Workers' Compensation Court, the petition may be dismissed, or the trial date vacated, pending completion of the requirement.
Karstetter v. State Compensation Ins. Fund [03/03/95] 1995 MTWCC 16 Though section 39-71-2411(6), MCA (1993) requires the parties to notify the mediator of their acceptance or rejection of mediation recommendations within forty-five days, the statute does not impose a forty-five day waiting period for filing a petition in the Workers’ Compensation Court. The only prerequisite to filing a petition after mediation is that one of the parties reject the recommendation.
McCracken v. City of Great Falls [12/14/94] 1994 MTWCC 114 A dispute concerning the relatedness of claimant’s cervical condition to his injury is not subject to the procedures of section 39-71-711, MCA (1987), and is subject to statutory mediation requirements. Where mediation has not yet taken place, the Workers’ Compensation Court does not yet have jurisdiction over the cervical dispute.
Rykowsky v. State Compensation Ins. Fund [12/09/94] 1994 MTWCC 112 Under section 39-71-2411, MCA (1993), the Workers’ Compensation Court does not have jurisdiction until a mediator has issued the mediation report and at least one party does not accept the mediator’s recommendation. Counsel’s statement in the petition that mediation requirements were satisfied was at best misleading where in fact no mediation report had issued, leading to the Court’s order to show cause why sanctions should not be imposed upon him. While the Court understands counsel’s desire for speedy resolution of his client’s claim, the Workers’ Compensation Court rules and procedures allow application for emergency trial if a true exigency exists. The Court also typically cooperates with special settings. Those procedures should have been followed.