24.5.350 APPEALS TO WORKERS' COMPENSATION COURT UNDER
TITLE 39, CHAPTERS 71 AND 72, MCA

McKay, Sr. v. City of Choteau [6/10/98] 1998 MTWCC 49 Occupational disease claimant appealing adverse determination of Department of Labor and Industry is not entitled to reversal of the decision below because a transcript was not prepared by the Department in accordance with the schedule set by the WCC. As the party raising issues requiring the transcript, appellant bore responsibility for causing the transcript preparation to move forward; he cannot shift that burden to respondent.
Polk v. Planet Ins. Co. [5/7/98] 1998 MTWCC 37 After the Montana Supreme Court reversed and remanded the WCC's decision affirming a DOL hearing officer in an occupational disease case, the WCC in turn remanded to the DOL. Appellant then asked the WCC to reconsider the remand, urging the WCC to hold its own evidentiary hearing and resolve the claims or, in the alternative, remand to the DOL with certain orders and instructions. Request denied because the WCC's jurisdiction in this matter is appellate jurisdiction, meaning it cannot substitute its original determinations for those of the Department. Under both section 2-4-703, MCA and ARM 24.5.350(5), any additional evidence must be taken by the agency. Appellant's arguments should be directed to the Department on remand.

ERD/UEF v. Total Mechanical Heating [11/17/00] 2000 MTWCC 71 A request to present additional evidence must be presented no later than the time set for the last brief on appeal or the day before oral argument if argument is requested. Rule 24.5.350(5). Untimely requests will not be considered. See also 32-4-703, MCA.

Synthetic Technologies Corp. v. ERD, UEF [1/14/99] 1999 MTWCC 5 Where appeal from decision of DOL was tendered to the WCC as a hybrid appeal/ petition failing to include a certificate of service on the opposing party as required by ARM 24.5.350, the Clerk of the WCC refused to file the document and returned it to counsel. Because this was the 30th day after the decision below, respondent moved to dismiss the appeal, arguing it was not timely under section 2-4-702(2) (a), MCA. The WCC denied the motion to dismiss, holding that section 2-4-702(2) (a), MCA, while a jurisdiction statute, was satisfied by the document appellant attempted to file. The Clerk of Court should have filed that document, then required compliance with Court rules. Although service was not made on the opposing party within 30 days, section 2-4-702, MCA only requires "prompt" service, not service within 30 days as a matter of jurisdiction of the appellate court.
McKay, Sr. v. City of Choteau [1/4/99] 1999 MTWCC 1 Claimant's motion for leave to present additional evidence following DOL decision was timely filed where it was received prior to the time set for the last brief on appeal in the WCC.
Erickson v. Champion International [07/26/95] 1995 MTWCC 58 This rule and section 2-4-703, MCA permit new evidence on appeal before the Workers’ Compensation Court only where there were good reasons for the failure to present the evidence below. Where claimant was informed he had the right to an attorney below, and was in fact in contact with counsel prior to his Department of Labor hearing, his pro se status before the DOL is not alone sufficient reason to allow introduction of additional medical evidence, even if such evidence is material to his case. Where claimant offers no good reason for his failure to present the evidence before the department other than his pro se status, the Court’s allowance of new evidence on appeal would permit every party to proceed pro se before the Department, then to hire counsel and secure a new hearing on appeal.
Wingfield v. State Compensation Ins. Fund [05/19/95] 1995 MTWCC 37 Although Workers’ Compensation Court rule 24.5.350(4) contemplates acceptance of new evidence in the Workers’ Compensation Court on appeal from a decision of the Department of Labor and Industry, where claimant has shown entitlement to present new evidence, controversy over appropriate rehabilitation option for claimant is more appropriately remanded to the Department hearing officer, a procedure contemplated by section 2-4-703, MCA.