39-71-2401, MCA

Raymond v. Uninsured Employers' Fund [12/11/08] 2008 MTWCC 52 Section 39-71-506, MCA, provides that the only way the UEF can seek reimbursement from an alleged uninsured employer is by first satisfying the due process requirements of § 39-71-2401(2)-(3), MCA. This requires that the dispute between the UEF and the alleged uninsured employer be brought before the department, after which the department’s order may be appealed to this Court. The UEF cannot bypass the departmental procedure for the sake of judicial economy, and this Court cannot create or enforce a process which, while more judicially economical, contravenes a statute which binds this Court.
Raymond v. Uninsured Employers' Fund [12/11/08] 2008 MTWCC 52 A prospective demand letter sent to an uninsured employer by a UEF claims adjuster does not satisfy the due process requirements of § 39-71-2401(2)-(3), MCA, and therefore does not comport with the requirements of § 39-71-506, MCA. Alleged uninsured employers are entitled to due process as specifically mandated by § 39-71-506, MCA, including the departmental procedure described in § 39-71-2401(2)-(3), MCA.
Raymond v. Uninsured Employers' Fund [09/19/08] 2008 MTWCC 45 Section 39-71-506, MCA, sets forth the procedure by which the UEF would assert a claim for reimbursement against an uninsured employer. This statute mandates that the due process requirements of § 39-71-2401(2)-(3), MCA, must first be met. Section 39-71-2401(2), MCA, requires the dispute to be brought before the Department of Labor and Industry, and § 39-71-2401(3), MCA, provides that an appeal from the departmental decision may be made to this Court.
[2001] Taves v. AIU [6/16/03] 2003 MTWCC 43 Mediation is a jurisdictional prerequisite to filing a petition in the Workers' Compensation Court.

[2001] 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.

[1997] Burner v. Uninsured Employers' Fund, 1998 MTWCC 81 and [1999] 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.
[1995] 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.
[1993] State Fund v. 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).
[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. 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.
[1993] 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.
Chippewa v. Montana State Fund [11/02/95] 1995 MTWCC 88 Workers’ Compensation Court lacked subject matter jurisdiction over claimant’s objection to garnishment of his biweekly temporary total disability benefits by Child Support Enforcement Division of the Department of Family and Health Services. Not only were the writs of execution on claimant’s benefits were issued by the Montana District Court, not by the WCC, and but the matter of garnishment is not a dispute “concerning benefits” over which the WCC has jurisdiction.

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.

Gomez v. MMIA [01/27/95] 1995 MTWCC 6 Where the insurer has accepted liability, but disputes arise as to amount and nature of benefits, the procedures of sections 39-72-602 and -611, MCA (1991), leading to a Department of Labor and Industry order and hearing, are not applicable. In those situations, sections 39-71-2401 and -2411, provide the Workers’ Compensation Court with original jurisdiction over disputes over benefits under the Occupational Disease Act following mediation. However, because the 1991 version of section 39-72-405, MCA authorized “the department” to allow compensation of up to $10,000 under that statute, and Carmichael v. Workers’ Compensation Court, 234 Mont. 410 (1988) does not allow this Court to apply new statutory provisions to claimant’s request under section 405, that dispute must first be heard in the Department of Labor.