39-71-520, MCA


Weidow v. Uninsured Employers' Fund, 2010 MT 292 Where the claimant pursued his claim in good faith, including timely notifying his employer of his injury and filing a claim with the UEF, the Montana Supreme Court determined that the ambiguity inherent in § 39-71-520(2), MCA, justified application of the doctrine of equitable tolling.  The court noted that the statute fails to define which “determination” it renders final and it fails to define “the department.”  The court held that where the claimant accepted the mediator’s determination, he reasonably believed the statute would render final the mediator’s recommendation unless the UEF appealed with 60 days.  He justifiably did not understand that the statute might be read to render the denial final.

Weidow v. Uninsured Employers' Fund, 2010 MT 292 This Court erred in concluding that it lacks the jurisdiction to toll the procedural time bar in § 39-71-520(2), MCA.  The cases upon which the Court relied were overruled by implication in Davis v. State, 2008 MT 226, 344 Mont. 300, 187 P.3d 654.  Equitable principles can apply to toll procedural filing deadlines during the administrative processing of claims.

Weidow v. Uninsured Employers' Fund, 2010 MT 292 Rather than reaching a determination that § 39-71-520(2), MCA, is unconstitutionally vague because its phrase “determination by the department” could have two possible meanings, the Court should have avoided the constitutional issue and instead resolved the issue by applying the doctrine of equitable tolling.
[2001] Flynn v. Uninsured Employers' Fund, 2005 MT 269 Under section 39-71-520, MCA (2001), an “appeal to mediation” of a determination by the UEF must be made within ninety days of the date of the UEF’s letter of determination, regardless of the date the letter of determination was mailed or the date it was received by claimant. Where the statute is clear on the ninety-day limit, additional time is not added for mailing under the provisions of M.R.Civ.P. Rule 6(e). Where the mediation requirement is not satisfied in a timely fashion, the Workers’ Compensation Court does not have jurisdiction over claimant’s petition.

[1999] Colmore, et al. v. Uninsured Employers' Fund, 2005 MT 239 Where claimant failed to notice UEF’s error in calculating benefit rate, and did not appeal that error within 90 days from the UEF’s determination of benefits pursuant to section 39-71-520, MCA (1999), the error could not be corrected where the interests of the uninsured employer, who is liable to the UEF for reimbursement of benefits paid, are also at issue. See also Hand v. UEF, 2004 MT 336.


Car Werks, LLC v. Uninsured Employers' Fund v. Gawronski [06/12/15] 2015 MTWCC 13 The uninsured employer’s pleadings and exhibits establish that it timely “appealed” to mediation the UEF’s determination to accept liability, and, when there was no settlement at mediation, timely petitioned this Court to resolve the dispute.  While claimant maintains that the uninsured employer’s documents and pleadings are not sufficiently precise to qualify as a mediation petition or a petition with this Court, the claimant is elevating form over substance.

Emanuel v. Montana State Fund [04/27/15] 2015 MTWCC 6 State Fund’s reliance on the 90-day statute of limitations in § 39-71-520(1), MCA, is misplaced, as that statute applies only to disputes concerning uninsured employers’ fund benefits.  Here, Petitioner chose to pursue benefits from State Fund under § 39-71-405, MCA, and the two year statute of limitations in § 39-71-2905(2), MCA, applies.

Wommack v. National Farmers Union Property & Casualty Co., et al. [04/14/15] 2015 MTWCC 5 While § 39-72-303(1), MCA, is written in terms of “employer” liability, it is the employer’s insurer that is actually liable for the payment of benefits.  Since Petitioner was never injuriously exposed to asbestos when CHS was at risk as a self-insured employer, CHS is not liable for Petitioner’s asbestos-related disease as a matter of law.

Cleek v. Uninsured Employers' Fund [08/08/12] 2012 MTWCC 31 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.  For the UEF to maintain that its right to reimbursement is unassailable and its denial of liability uncontestable because Petitioner did not re-mediate his claim every time the UEF made a new determination, strains credulity.  The initial petition, timely mediated and timely filed, seeks a determination as to whether Petitioner’s claim is compensable and whether the UEF is liable for payment of his benefits. These issues are in dispute and properly before this Court.

Cleek v. Uninsured Employers' Fund [08/08/12] 2012 MTWCC 31 Insofar as the UEF contends that Petitioner must repeatedly request mediation then petition this Court every time the UEF makes a “determination” on Petitioner’s claim, here there is one claim for benefits, one date of injury, and one issue regarding compensability of the claim which was being paid on a disputed liability basis.  There is no dispute that Petitioner timely filed for mediation then timely petitioned this Court.  Montana is a notice-pleading state; all subsequent and subjacent issues are a consequence of that initial dispute, i.e.: denial of the claim, termination of benefits, and demand for repayment.  All relate to the compensability of Petitioner’s claim, and all relate back to the original petition before this Court.  Therefore, the parties have already complied with the requirements of mediation on these issues.

Florence v. Morales [02/24/11] 2011 MTWCC 5 Where the uninsured employers failed to request mediation within the time limits of § 39-71-520(1), MCA, contending that they suffered from financial and health problems which made it difficult for them to pursue their case, the Court concluded no basis existed for it to equitably toll the statutory time bar.
Dostal v. Uninsured Employers' Fund [12/22/10] 2010 MTWCC 38 The correct statutes of limitations to apply to a workers’ compensation claim are those statutes which were in effect on the date of the claimant’s industrial injury.  Where Petitioner was injured while the 1991 statutes were in effect, the limitations now found within § 39-71-520, MCA, do not apply because they did not exist in the 1991 WCA.
Bailey v. Uninsured Employers' Fund [12/14/10] 2010 MTWCC 34 Section 39-71-520(2), MCA, requires that a petition to this Court must be filed within 60 days of the mailing of the mediator’s report.  Rule 6(e), M.R.Civ.P., does not apply to this time limit because the statute does not rely on “service” as the basis for commencing the 60-day time period.  Therefore, delivering the report by mail does not add three additional days to the time limit.
Wilson v. Uninsured Employers' Fund [03/08/10] 2010 MTWCC 5 A Department determination regarding UEF benefits becomes final after 90 days unless a party appeals that determination to mediation.  Where the third-party respondent failed to appeal that determination within 90 days, it became final and any attempt to dispute the determination is untimely.
Benton v. Uninsured Employers' Fund [12/03/09] 2009 MTWCC 37 Where the Petitioner need not have guessed at the meaning of the “determination of the department” referenced in the statute since she had rejected both the mediator’s recommendation and the UEF’s determination, her required conduct – petitioning the Workers’ Compensation Court within 60 days – was sufficiently defined and therefore, § 39-71-520(2), MCA, is not unconstitutionally vague as applied to her case.
Benton v. Uninsured Employers' Fund [12/03/09] 2009 MTWCC 37 From the moment a worker is injured in the course and scope of employment, the remedies available to him and the path he follows in seeking redress is determined by whether his employer was properly insured. The distinct process legislatively mandated for insured workers versus uninsured workers leads the Court to conclude that the classes of injured employees at issue in this case are not similarly situated.
Benton v. Uninsured Employers' Fund [12/03/09] 2009 MTWCC 37 For purposes of the Petitioner’s equal protection challenge to § 39-71-520(2)(b), MCA, the Court defined the classes involved as (I) injured workers employed by uninsured employers seeking benefits from the UEF, and (II) injured workers employed by insured employers seeking benefits from the employer’s insurer.
Weidow v. Uninsured Employers' Fund [12/31/08] 2008 MTWCC 56 Section 39-71-520(2), MCA, is unconstitutional because it is so ambiguous that it is void for vagueness. It can reasonably be interpreted to mean that either the Uninsured Employer’s Fund’s determination or the mediator’s report become final if a petition is not filed within 60 days, and individuals of ordinary intelligence must necessarily guess at this section’s meaning.
Weidow v. Uninsured Employers' Fund [12/31/08] 2008 MTWCC 56 The time limit imposed in § 39-71-520(2), MCA, is jurisdictional in nature and this Court is without authority to waive it.
Weidow v. Uninsured Employers' Fund [12/31/08] 2008 MTWCC 56 Section 39-71-520, MCA, is not tolled during the 25-day period which the parties have to notify the mediator as to whether they accept the mediator’s recommendation.

Weidow v. Uninsured Employers' Fund [12/31/08] 2008 MTWCC 56 Section 39-71-520, MCA, cannot clearly be interpreted to mean that it is the mediator’s report which becomes final if settlement is not reached and a petition is not filed within 60 days of the mailing of the mediator’s report. It can also reasonably be interpreted to mean that the UEF’s determination becomes final if a petition is not filed within 60 days.

Raymond v. Uninsured Employers' Fund [09/19/08] 2008 MTWCC 45 Section 39-71-520, MCA, provides that a dispute concerning UEF benefits must be appealed to mediation within 90 days. Since the uninsured employer is not paying UEF benefits, it follows that a dispute concerning UEF benefits which is brought by an injured worker can only be a dispute between the worker and the UEF. A dispute between the UEF and an alleged uninsured employer follows a different procedure to get to the WCC.
Horizon Custom Homes v. UEF [02/14/07] 2007 MTWCC 8 The first prerequisite in any equal protection analysis is a showing that the classes at issue are similarly situated. If they are not, the Court need look no further. Since the Court determined that statutorily-defined uninsured employers and employers who do not fall into this category are not similarly situated, Petitioner’s equal protection challenge to § 39-71-520, MCA, must fail.
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.
[2003] Lawrence v. UEF/Hess [12/19/05] 2005 MTWCC 56 The limitations period found at § 39-71-520, MCA (2003), begins to run when the facts are such that the party seeking relief would have discovered the mistake in the exercise of ordinary diligence. Colmore v. Uninsured Employers’ Fund, 2005 MT 239, ¶ 42, 328 Mont. 441, 121 P.3d 1007. Where the petitioner exercises ordinary diligence in determining his correct wage and the employer has withheld evidence that may provide for a calculation different from that which was originally arrived at, § 39-71-520, MCA (2003), will not operate as a bar to consideration of the withheld evidence. Whether the wage information contained in the new evidence is an accurate reflection of the petitioner’s wage is a question of fact to be determined at trial.
[2001, 2003] Flynn v. UEF and Casterline [10/21/04] 2004 MTWCC 71 Since section 39-71-520, MCA (2001, 2003), clearly and expressly states that a determination of the Uninsured Employers' Fund is final unless a request for mediation is made within ninety days of the determination, mediators of the Department of Labor and Industry lack jurisdiction to consider a late request. Since mediation is a prerequisite to the Court acquiring jurisdiction over a disputed Uninsured Employers' Fund determination, the Court lacks jurisdiction to adjudicate the dispute where petitioner requested mediation ninety-three days after the Uninsured Employers' Fund's determination. As set forth in section 39-71-520, MCA (2001 and 2003), the Uninsured Employers' Fund's determination became final ninety days after the determination. Affirmed Flynn v. UEF, 2005 MT 269

[2001] Flynn v. UEF and Casterline [9/24/04] 2004 MTWCC 67 Under the express terms of section 39-71-520, MCA (1993-2003), a claim for benefits from the UEF is barred unless the claimant requests mediation within ninety days of the UEF's determination denying benefits. The ninety-day period begins running on the date of the denial, not on the date the claimant receives the denial. The ninety-day period is not extended by the fact that the denial was mailed.

[1993] Colmore v. UEF/Forgey [3/4/04] 2004 MTWCC 22 While section 39-71-520, MCA (1993), requires a claimant to appeal a UEF determination within ninety days, the section has no application to a determination that is based on mutual mistake of fact. Where claimant does not timely appeal, an implicit agreement arises regarding the correctness of the determination; that implicit agreement can be reopened where both parties were laboring under a material, mutual mistake of fact. (Note: WCC reversal on this ground in Colmore, et al. v. Uninsured Employers' Fund, 2005 MT 239.)
[2001] James v. UEF [10/22/02] 2002 MTWCC 51 Section 39-71-520, MCA, requires that following a benefits determination by the Uninsured Employers' Fund an aggrieved party must request mediation within 90 days, otherwise the determination is final. Since mediation is a prerequisite to filing a petition in the Workers' Compensation Court, 39-71-2401(1), -2408(1), and -2905, MCA, a failure to request mediation within 90 days bars the Court from reviewing the UEF determination.
[1999] Hoff v. Uninsured Employers’ Fund [7/19/00] 2000 MTWCC 44 Although the statute requires a dispute concerning uninsured employers’ fund benefits to be appealed to mediation within 90 days from the date of the determination or the date the determination became final, a letter from the UEF to claimant discussing permanent partial disability benefits was not a determination regarding temporary total disability benefits and thus did not commence the running of the appeal period regarding TTD entitlement.
[1999] Hoff v. Uninsured Employers’ Fund [7/19/00] 2000 MTWCC 44 The triggering event for running of the 90 days to appeal to mediation from a determination of the uninsured employers’ fund is not receipt of the determination, but the determination itself.