39-72-602, MCA

MONTANA SUPREME COURT DECISIONS
Kessel v. Liberty Northwest Ins. Corp. [11/27/07] 2007 MT 305 Section 39-72-602, MCA, does not impose a requirement that a claimant submit to the statutorily-required medical examination within a specific amount of time.
Kessel v. Liberty Northwest Ins. Corp. [11/27/07] 2007 MT 305 Under § 39-72-602, MCA, a final “denial” of an OD claim cannot take place until after an OD evaluation has been conducted. Section 39-71-2905, MCA, plainly states that a petition for hearing must be filed within two years after benefits are denied. In the context of § 39-72-602, MCA, such a denial in an OD claim can take place only after an OD evaluation has been conducted.

[1993] Grooms v. Ponderosa Inn, State Fund, and Department of Labor and Industry, 283 Mont. 459, 942 P.2d 699 (1997) Supreme Court affirmed WCC's conclusion that the medical panel examination required by section 39-72-602(2)(a), MCA, to establish an occupational disease claim does not deny claimant her right to select a treating physician pursuant to section 33-22-111, MCA. The right to select a physician is limited to selection of a treating physician; examinations by panel physicians are in the nature of independent medical examinations used only for the purpose of assessing occupational disease status. Claimant is not required to undergo treatment with the physician, only examination if she wants to pursue an OD claim.

[1993] Grooms v. Ponderosa Inn, State Fund, and Department of Labor and Industry, 283 Mont. 459, 942 P.2d 699 (1997) Supreme Court affirms WCC's determination that claimant's right to equal protection of the laws was not violated by the requirement of section 39-71-602, MCA, that she pay for a second panel examination if she is the party making the request for a second examination.
[1993] Grooms v. Ponderosa Inn, State Fund, and Department of Labor and Industry, 283 Mont. 459, 942 P.2d 699 (1997) Supreme Court affirmed WCC's conclusion claimant's constitutional right to legal redress is not violated by provision of section 39-72-602, MCA, that she pay for a second panel evaluation conducted at her request. The provision that she pay for a second evaluation at her request does not deprive her of a hearing on her claim.
 
WORKERS' COMPENSATION COURT DECISIONS
[1999] Hand v. UEF [8/28/02] 2002 MTWCC 43 Where a contested case hearing is requested, the UEF is entitled to raise in that proceeding any and all defenses it may have to an occupational disease claim. [Note: The Workers Compensation Court decision was reversed by the Supreme Court in Hand v. UEF, 2004 MT 336 (No. 03-346).]
[1995] Bouldin vs. Liberty Northwest Ins. Corp. [10/8/96] 1996 MTWCC 61 Although neither party questioned the WCC's jurisdiction to decide the case, jurisdiction is an issue which may be raised at any time and may be raised sue sponte. When liability for an alleged occupational disease is disputed under the 1995 version of the Occupational Disease Act (ODA), the procedures set forth at section 39-72-602, MCA (1995), are mandatory. These procedures include examination by a panel of physicians appointed by the Department of Labor, preparation of a report, issuance of an order by the DOL, hearing procedures in the DOL, and appeal to the WCC. Because this is a denied liability case, the DOL, not the WCC, has original jurisdiction to conduct a de novo hearing into whether claimant has an occupational disease. However, the WCC has jurisdiction to determine whether the insurer's initial acceptance of the claim bars subsequent denial.
[1993] Grooms v. Ponderosa Inn and State Fund 1996 MTWCC 51 [7/16/96] 1996 MTWCC 51 The medical panel examination required by section 39-72-602(2)(a), MCA, to establish an occupational disease claim does not deny claimant her right to select a treating physician pursuant to section 33-22-111, MCA. The right to select a physician is limited to selection of a treating physician; examinations by panel physicians are in the nature of independent medical examinations used only for the purpose of assessing occupational disease status. Claimant is not required to undergo treatment with the physician, only examination if she wants to pursue an OD claim. [Note: WCC was affirmed on this ground in Grooms v. Ponderosa Inn, 283 Mont. 459, 942 P.2d 699 (1997).]
[1993] Grooms v. Ponderosa Inn and State Fund 1996 MTWCC 51 [7/16/96] 1996 MTWCC 51 Claimant's right to equal protection of the laws was not violated by the requirement of section 39-71-602, MCA, that she pay for a second panel examination if she is the party making the request for a second examination. [Note: WCC was affirmed on this ground in Grooms v. Ponderosa Inn, 283 Mont. 459, 942 P.2d 699 (1997).]
[1993] Grooms v. Ponderosa Inn and State Fund 1996 MTWCC 51 [7/16/96] 1996 MTWCC 51 Claimant's constitutional right to legal redress is not violated by provision of section 39-72-602, MCA, that she pay for a second panel evaluation conducted at her request. The provision that she pay for a second evaluation at her request does not deprive her of a hearing on her claim. [Note: WCC was affirmed on this ground in Grooms v. Ponderosa Inn, 283 Mont. 459, 942 P.2d 699 (1997).]
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.