39-71-2408, MCA


Moreau v. Transportation Ins. Co. [01/06/15] 2015 MT 5 Under the plain language of the statute, the personal representative of claimant’s estate had standing to bring a dispute before the workers’ compensation court over the payment of medical benefits, when the entity that paid the medical benefits refused to accept reimbursement.


Hall v. New Hampshire Ins. Co. [07/12/16] 2016 MTWCC 10 The mediator’s Report and Recommendation is not a mere procedural technicality, but is a meaningful part of the mediation process.  Parties should consider the mediators’ recommendations before moving forward with litigation.  If this Court were to forego the requirement of a mediator’s Report and Recommendation before the petition filing, it would defeat the purpose of § 39-71-2408, MCA.

Hall v. New Hampshire Ins. Co. [07/12/16] 2016 MTWCC 10 Since Preston v. Transportation Ins. Co., this Court has strictly construed the mediation requirement of § 39-71-2408, MCA, and dismissed petitions filed prior to the completion of the mediation process, including this case in which the claimant filed his petition prior to the issuance of the mediator’s Report and Recommendation.

Young v. New Hampshire Ins. Co. [06/18/15] 2015 MTWCC 14 “Substantial compliance” with the mediation requirement of § 39-71-2408, MCA, is insufficient to confer jurisdiction on this Court.  An incomplete mediation must be dismissed for lack of jurisdiction.

Young v. New Hampshire Ins. Co. [06/18/15] 2015 MTWCC 14 In Preston v. Transportation Ins. Co., 2004 MT 339, ¶ 36, the Montana Supreme Court held that mediation is mandatory under the Workers’ Compensation Act and must be completed before a party can petition this Court for relief.  Since Preston, this Court has strictly construed the requirement that the mediation process be completed before a petition is filed.  This case is no exception.

Car Werks, LLC v. Uninsured Employers' Fund v. Gawronski [06/12/15] 2015 MTWCC 13 Despite the uninsured employer’s claim that the specific issue of medical causation was not mediated, when a party contests the decision on initial compensability, the mediation of that issue encompasses all subjacent compensation issues whether or not they are specifically mentioned in the request for mediation.  The uninsured employer’s dispute with the UEF over acceptance of a claim on its theory that a previous motorcycle accident caused claimant’s injuries is subjacent to the issue of whether the UEF correctly accepted liability.

Car Werks, LLC v. Uninsured Employers' Fund v. Gawronski [06/12/15] 2015 MTWCC 13 Although couched as an appeal of the mediator’s non-binding decision, it is clear from the initial pleading that the uninsured employer is really contesting the UEF’s decision to accept liability for the claimant’s claim.

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.