Mediation

MONTANA SUPREME COURT DECISIONS
Preston v. Transportation Ins. Co. [12/01/04] 2004 MT 339 (No. 02-522) The two-year limitations period for filing a claim to reopen a workers’ compensation settlement tolled during the sixty-two days between claimant’s petition for meditation before the Department of Labor and the issuance of the mediation report. Hence, claimant had an additional sixty-two days within which to file her petition to the Workers’ Compensation Court and that the Court erred by finding her claim time-barred.
Preston v. Transportation Ins. Co. [12/01/04] 2004 MT 339 (No. 02-522) Petition for meditation before the Department of Labor pursuant to section 39-71-2401, MCA, et seq., is not commencement of an action for purposes of meeting the two-year statute of limitations for filing a claim to reopen a workers’ compensation settlement.
 
WORKERS' COMPENSATION COURT DECISIONS

Mackey v. Ace American Ins. Co. [12/27/12] 2012 MTWCC 46 Under the Workers’ Compensation Act, an injury and an occupational disease are separate and distinct claims and therefore although Petitioner mediated his injury claim, he must also mediate his occupational disease claim prior to pursuing the latter in this Court in accordance with § 39-71-2406, MCA.

Cleek v. Uninsured Employers' Fund [08/08/12] 2012 MTWCC 31 Where a claim is denied, mediation of that denial encompasses all subjacent compensation issues whether or not they are specifically mentioned in the request for mediation.  For the UEF to maintain that its right to reimbursement is unassailable and its denial of liability uncontestable because Petitioner did not re-mediate his claim every time the UEF made a new determination, strains credulity.  The initial petition, timely mediated and timely filed seeks a determination as to whether Petitioner’s claim is compensable and whether the UEF is liable for payment of his benefits. These issues are in dispute and properly before this Court.

Cleek v. Uninsured Employers' Fund [08/08/12] 2012 MTWCC 31 Insofar as the UEF contends that Petitioner must repeatedly request mediation then petition this Court every time the UEF makes a “determination” on Petitioner’s claim, here there is one claim for benefits, one date of injury, and one issue regarding compensability of the claim which was being paid on a disputed liability basis.  There is no dispute that Petitioner timely filed for mediation then timely petitioned this Court.  Montana is a notice-pleading state; all subsequent and subjacent issues are a consequence of that initial dispute, i.e.: denial of the claim, termination of benefits, and demand for repayment.  All relate to the compensability of Petitioner’s claim, and all relate back to the original petition before this Court.  Therefore, the parties have already complied with the requirements of mediation on these issues.

Flynn & Miller v. Liberty Northwest Ins. Corp. [07/01/10] 2010 MTWCC 21 After a common fund is established, what remains is an in rem action.  Since the mandatory mediation requirement applies only when benefits are in dispute and Flynn I resolved any disputes regarding entitlement to Flynn common fund benefits, the mandatory mediation requirement does not apply.
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.
Emergency Preparedness Systems, LLC v. Scobie [09/03/08] 2008 MTWCC 44 Where Petitioner’s letter unambiguously identified itself as an appeal of both the Independent Contractor Centra Unit’s determination and the Wage and Hour Unit’s determination, and which went on for five pages to detail the manner in which Respondent disagreed with both determinations, the Court concludes that the letter satisfies the requirements for requesting mediation pursuant to § 39-71-415, MCA.
Baker v. Transportation Ins. Co. [02/01/07] 2007 MTWCC 6 Before 1987, no mandatory mediation provision existed under either the Workers’ Compensation Act or the Occupational Disease Act. Therefore, Petitioner was not required to attempt to mediate any dispute prior to petitioning the Court.
Auchenbach v. UEF [03/29/06] 2006 MTWCC 13 The Court found the elements of estoppel by silence and equitable estoppel satisfied where the UEF had a statutory duty to notify the mediation unit of its acceptance or rejection of a mediation recommendation within twenty-five days under § 39-71-520(2), MCA, failed to notify the mediation unit of its acceptance or rejection, let the sixty-day statute of limitation for filing a petition with the Court under § 39-71-2411(6), MCA, run on a pro sé claimant, and moved to dismiss based on the claimant’s failure to file her claim within sixty days of the mailing of the mediator’s recommendation.
Peterson v. Montana Schools Group Ins. Authority [06/02/05] 2005 MTWCC 30 The Workers’ Compensation Court does not have jurisdiction to adjudicate a request for permanent total disability benefits where the claimant has not mediated his request. Mediation with respect to a request for temporary total disability benefits does not satisfy the mediation requirement since “any” issue raised in the Workers’ Compensation Court must be first mediated. A request for permanent total disability benefits is a separate and distinct issue.
Higgins v. Liberty NW [3/23/04] 2004 MTWCC 31 The mediation requirements of the Montana Workers' Compensation Act do not require a claimant to present every conceivable legal theory in support of his claim for benefits. In the context of a request to reopen a settlement, the claimant was not required to specifically argue a constructive fraud theory in order to preserve the issue for consideration by the Workers' Compensation Court.
Dunn v. Idemnity Ins. Co. of NA [8/8/02] 2002 MTWCC 38 Insurer not entitled to dismissal of permanent partial disability claim for failure to specifically mediate that issue where the insurer denied all liability and its denial was mediated. Mediation of denied claim encompasses all subjacent benefits issues. Burner v. Uninsured Employers' Fund, 1998 MTWCC 81, reaffirmed.
Marquardt v. Liberty [7/12/01] 2001 MTWCC 39 While parties are required to present all issues during mediation, they are not required to present every item of evidence that they may ultimately use at trial and are not precluded from developing additional evidence subsequent to mediation. ß 39-71-2406 (1999-2001).
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.
Fjelstad v. Fireman's Fund [10/15/99] 1999 MTWCC 62 Insurer moved to vacate trial setting because claimant sought to include in Pretrial Order issues not framed by petition and not mediated. Motion granted where claimant has raised new issues, such as that the settlement agreement should be reopened on grounds the insurer caused claimant mental distress, breached a fiduciary duty to him, or engaged in fraud. While newly articulated legal arguments or theories may often lie within the issues alleged in the petition, these new allegations are fact-based contentions not framed by the pleadings or subjected to full discovery. If claimant wants to litigate these issues, they must be mediated and a motion to amend filed in the WCC.
Meyer v. Valor Ins. Co., Inc. [9/30/99] 1999 MTWCC 59 Claim not mediated is dismissed. Under 39-71-2401(4)(c), mediator has exclusive authority to determine whether the petitioner provided respondent with sufficient documentation to comply with the mediation requirement. The WCC has jurisdiction only to hear appeal of such issues after mediator's ruling. Because the mediator issued no ruling on that issue, the motion to dismiss on that ground is denied.
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).
Hodge v. State Fund [1/29/99] 1999 MTWCC 9 Where claimant filed a petition asking for PTD benefits, or PPD benefits in the alternative, the claim for PPD benefits is subject to dismissal where not mediated as required by section 39-71-2401, MCA. Alternative claims for PTD and PPD benefits are distinguished from a claim for benefits where the insurer denies all liability, thereby putting everything at issue and frustrating mediation of individual benefits issues. Compare Burner v. UEF, 1998 MTWCC 81. The WCC will stay litigation of the PTD claim to permit mediation of the PPD claim; otherwise, the PPD claim will be dismissed.
Burner v. UEF [11/6/98] 1998 MTWCC 81 Under section 39-71-2408(1), MCA, mediation is a prerequisite to filling a petition with the WCC. Where an insurer (or the UEF) has denied liability for a claim, however, the claimant is prevented from mediating specific issues lying behind the denial, such as benefit rate or entitlement to particular benefits. In those circumstances, WCC refused to dismiss pending petition after UEF accepted liability despite UEF's argument that mediation had not been conducted on specific issues left in the case. Requiring dismissal and return to mediation if an insurer accepts liability would raise the possibility of multiple dismissals and mediations, which would contravene the public policy of speedy entitlement to benefits set out in section 39-71-105, MCA.
Lewis v. State Fund and Montana Schools Group Insurance Authority [9/25/97] 1997 MTWCC 53 Where claimant clarifies that he is not seeking benefits from an insurer based on any alleged post-1987 injury, the insurer's motion to dismiss for failure to mediate is denied.
Lumbermens Mutual Cas. Co. v. Charles E. Mares [9/19/97] 1997 MTWCC 51 Claim for reimbursement contained within insurer's petition for declaratory judgment dismissed for failure to mediate that particular issue.
Ward v. Plum Creek Manufacturing [8/13/97] 1997 MTWCC 46 Where the insurer did not demand specification to support claimant's request for a lump-sum advance of PPD benefits during the mediation process, the insurer cannot complain to the WCC about inadequate specification during mediation. While section 39-71-2401(4)(a), MCA (1993) references providing a specific demand prior to mediation, the remedy for that failure is provided in the mediation statute and requires decision by the mediator, which could then be reviewed by the WCC.
Gallup v. State Compensation Insurance Fund [5/21/96] 1996 MTWCC 35  Where claimant failed to prove her entitlement to TTD benefits in a prior trial, her present petition for TTD benefits must turn upon whether her condition has changed in the period following trial. Where the issue of change in her condition was not mediated, the Court has no jurisdiction over the present petition.
Nelson v. State Compensation Insurance Fund [4/4/96] 1996 MTWCC 29 Although respondent moved to dismiss petition for failure to mediate, affidavit from claimantís 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.
Russell v. Protective Ins. Co. [12/27/95] 1995 MTWCC 111 Where insurer moves to dismiss petition because the mediation process has not been completed, an alternative to dismissal is vacating the pending trial date. In either event, the petition cannot be scheduled for trial until the mediation process has been completed through issuance of a recommendation by the mediator and rejection of that recommendation by one or both parties.
Russell v. Protective Ins. Co. [12/27/95] 1995 MTWCC 111 While discovery may not be contemplated in the mediation process, where the parties have agreed to provide additional information to the mediator and to postpone the mediatorís recommendation, the mediation deadlines are suspended pending submission of the additional information. A party cannot agree to postpone the recommendation, then claim the matter is ready for trial in the WCC without completion of the mediation process.
Giest v. Lumbermens Mut. Casualty Co. [12/14/95] 1995 MTWCC 103-A Where mediatorís report and Department Rule (ARM 24.28.108) prohibit party who rejects mediatorís report from immediately filing petition for hearing in Workersí Compensation Court, they conflict with section 39-71-2411(6), MCA (1995).

Giest v. Lumbermens Mut. Casualty Co. [12/08/95] 1995 MTWCC 103 Petition for hearing with the WCC may be filed same day claimant rejected mediatorís recommendation. Under section 39-71-2411(6), MCA (1995), petition may be filed if ďeitherĒ party rejects the mediatorís recommendation.

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.
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.