39-71-2411, MCA

Hardie v. Montana State Fund [01/09/12] 2012 MTWCC 2 The Montana Supreme Court has previously held that the statute of limitations in § 39-71-2905(2), MCA, is tolled from the date a claimant files for mediation through the 25-day timeframe set forth in § 39-71-2411(7), MCA.  The court has further held that the tolling period is calculated from the date of the mediation request through the deadline for both parties to respond to the mediator’s recommendation.  Petitioner’s petition in this matter was timely as it was filed within two years of the claim denial, when the tolling of the statute of limitations from the date of the mediation petition filing through 25 days following the issuance of the mediator’s report is taken into account.
Charlson v. Montana State Fund [07/01/10] 2010 MTWCC 23 Because § 39-71-2411(7), MCA, requires neither a written rejection of the mediator’s recommendation nor specific verbiage to reject the recommendation, Petitioner’s letter to the mediator in which he indicated that he would file a petition for hearing satisfied the Court that Petitioner had rejected the mediator’s recommendation. 
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.

[1995] Nelson v. State Compensation Insurance Fund [4/4/96] 1996 MTWCC 29 Although respondent moved to dismiss petition for failure to mediate, affidavit from claimant’s 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.

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.
[1993] 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.