<%@LANGUAGE="JAVASCRIPT" CODEPAGE="1252"%> John Dunn

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IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA

2002 MTWCC 38

WCC No. 2002-0591


JOHN DUNN

Petitioner

vs.

INDEMNITY INSURANCE COMPANY OF NORTH AMERICA

Respondent/Insurer for

MOUNTAIN STATE ENERGY

Employer.


ORDER DENYING MOTION TO DISMISS PPD CLAIM

Summary: Insurer moves to dismiss permanent partial disability claim for failure to specifically mediate that issue.

Held: Insurer is 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.

Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: Section 39-71-2408(1), MCA (1997). Insurer not entitled to dismissal of f 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.

Mediation. 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.

Cases Discussed: Burner v. Uninsured Employers' Fund, 1998 MTWCC 81. Insurer is 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.

1 Indemnity Insurance Company of North America (Indemnity Insurance), which has persisted in its denial of liability for the claim in this case, moves to dismiss the claimant's request for permanent partial disability benefits. It argues that the issue was not specifically mediated.

2 Despite the insurer's attempt to factually distinguish the case, Burner v. Uninsured Employer's Fund, 1998 MTWCC 81, is directly on point. The fact that the insurer accepted liability one week prior to trial does not distinguish the case, indeed the claimant was better off in that case as a result of the acceptance than the claimant in this case, who must still litigate the denial of the claim. I attach a copy of Burner and reaffirm what I said there, directing counsel's attention particularly to paragraph 6. To reiterate the holding of the case, 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.

3 The motion to dismiss is denied.

DATED in Helena, Montana, this 8th day of August, 2002.

(SEAL)

\s\ Mike McCarter
JUDGE

c: Ms. Charla K. Tadlock
Mr. Leo S. Ward
Submitted: August 6, 2002
Attached: Burner, 1998 MTWCC 81

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