39-71-2408, MCA

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.

[1999] Higgins v. Liberty NW [3/23/04] 2004 MTWCC 31 The mediation requirements of the Montana Workers' Compensation Act does 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.
[1997] Dunn v. Idemnity Ins. Co. of NA [8/8/02] 2002 MTWCC 38 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.
[1997] 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.
[1997] 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.