the amputation of his right leg and left foot, claimant turned to alcohol
to escape from the reality of what his life had become. (Petitioner's
Answer Brief to Respondent's Motion for Summary Judgment, Uncontested
Fact 14 at 4.) He ceased drinking a year ago. (Id.)
¶4 The subrogation Order
at issue in this case was entered by the Division. In 1989 the Division
was dissolved and its duties transferred to the Department. § 64, ch.
613, 1989 Mont. Laws. Since 1975 the Legislature has adopted other amendments
to the Workers' Compensation Act which affect the dispute resolution
process. The changes in the law complicate the resolution of the issues
in this case.
¶5 In its Motion for Partial
Summary Judgment the State Fund argues several grounds for dismissing
claimant's request to set aside the 1977 Division Order. First, it argues
that the request is barred by the statute of limitations. Second, it
asserts that even if not barred by a statute of limitations the request
is barred by the equitable doctrine of laches. Third, it argues
that claimant is collaterally estopped from contesting the adequacy
of the amount of the damages he recovered in his third-party action.
¶6 One issue not specifically
raised in the State Fund's motion concerns the jurisdiction of the Workers'
Compensation Court to set aside the subrogation Order. Whether the Court
has subject matter jurisdiction may be raised at any time and may be
raised by the Court sua sponte (on its own motion). In
re Marriage of Miller, 259 Mont. 424, 426, 856 P.2d 1378, 1380
(1993). In oral argument held in Billings on February 2, 1999, the issue
was raised. Since subject matter jurisdiction is a prerequisite to the
Court's adjudication of the other issues, it must be addressed first.
I. The 1977 Order
¶7 At the time of the claimant's
injury, subrogation was governed by R.C.M. 92-204.1, which was enacted
in 1973 as a new section. §1, ch. 493, 1973 Mont. Laws. The section
provided for a right of subrogation and for enforcement of that right.
The last sentence of the paragraph gave the Division the authority to
finally determine the amount due an insurer, providing:
In the event that the
amount of compensation and benefits payable under this act shall not
have been fully determined at the time such employee or his heirs
or personal representative, or the employer or insurer, shall receive
settlement of his action, prosecuted as aforesaid, then the division
shall determine what proportion of such settlement shall be allocated
under subrogation and such determination may be appealed as any other
determination of the division.
At the time the section was
enacted the Workers' Compensation Court had not been established. Thus,
any appeal from the Division Order was to district court in accordance
with the Montana Administrative Procedure Act (MAPA).
¶8 In 1977 the Legislature
amended R.C.M 92-204.1, splitting it into two sections designated as
R.C.M. 92-204.1 and 92-204.2 (1977). §§ 2 and 3, ch. 550, 1977 Montana
Laws. In doing so, the Legislature also provided that an appeal of a
subrogation order was to the Workers' Compensation Court. Subsection
(5) of 92-204.2 (1977) provided:
(5) If the amount of compensation
and other benefits payable under the Workers' Compensation Act have
not been fully determined at the time the employee, the employee's
heirs or personal representatives, or the insurer have settled in
any manner the [third-party] action as provided for in this section,
the division shall determine what proportion of the settlement shall
be allocated under subrogation. The division's determination may be
appealed to the workers' compensation judge.
The amendment was effective
July 1, 1977. R.C.M. 43-507 (1975). Since it concerned a matter of procedure
-- the forum for adjudication, the Division's subrogation Order, which
was entered subsequent to the effective date of the amendment, was appealable
to the Workers' Compensation Court. Haugen v. Blaine Bank of Montana,
279 Mont. 1, 8-9, 926 P.2d 1364, 1368 (1996) (" [W]here a statute
is procedural, rather than substantive . . . the statue in question
will be applied to a cause of action arising before its enactment.").
¶9 The 1977 amendment did
not provide any time limit for filing an appeal from a subrogation order.
No other provision of the 1977 Workers' Compensation Act, or the 1975
and 1973 versions of the Act, provided a time limit for an appeal of
the order and the same is true today.
¶10 However, at the time
of claimant's industrial accident, at the time of the Division's Order,
and presently, MAPA provides a 30-day period in which to seek judicial
review of an agency decision. R.C.M. 82-4216 (1973-77) (recodified as
section 2-4-702, MCA). The 30-day limitation was part of a section which
provided for, and still provides for, judicial review of any final decision
of a state agency in a contested case proceeding. In Ranger Ins.
Co. v. Bates, WCC No. 9709-7821, Order Granting Motion to Strike
Cross Appeal (December 30, 1997), I held that absent a specific time
limitation under the Workers' Compensation Act the general 30-day time
limitation applies to applications for judicial review by [appeals to]
the Workers' Compensation Court. Compare with Carbon County
School District Trustees v. Spivey, 247 Mont. 33, 805 P.2d 61 (1991)
(longer, specific statute governing judicial review of a decision of
the Superintendent of Public Instruction terminating a tenured teacher
supercedes more general limitation under MAPA in the absence of clear
legislative intent to repeal the specific limitation). Any contention
that the MAPA time limit for appeals does not apply to the Workers'
Compensation Act is negated by a specific provision in the Workers'
Compensation Act stating that appropriate provisions of MAPA apply to
the Court. That provision was in effect at the time of the Division's
Order, R.C.M. 92-852(1) (1977), and is still in effect, § 39-71-2903,
¶11 In this case, no appeal
was ever taken from the Division's 1977 Order and the time for doing
so has long past. Therefore, the Division's Order is final and binding
on both claimant and the State Fund.
II. Jurisdiction to Alter
the 1977 Order
¶12 Claimant's request that
the Court set aside the 1977 Order requires the Court to determine if
it has the authority or jurisdiction to do so.
¶13 At the time the 1977
Order was entered, the Workers' Compensation Act authorized the Department
to rescind or amend its prior orders. R.C.M. 92-826 (1977), provided:
The division shall have
continuing jurisdiction over all its orders, decisions, and awards,
and may, at any time, upon notice, and after opportunity
to be heard is given to the parties in interest, rescind, alter, or
amend any such order, decision, or award made by it upon good
cause appearing therefor. . . . Any order, decision, or award
rescinding, altering, or amending a prior order, decision, or award,
shall have the same effect as original orders or awards. [Emphasis
As noted earlier, the Division
was dissolved in 1989 and its powers transferred to the Department.
The Division's power to rescind prior orders was thereby transferred
to the Department.
¶14 Section 39-71-204, MCA
(1997), the current statute governing the reopening of prior orders
of the Division and Department, provides:
alteration, or amendment by department of its orders, decisions, or
awards -- effect -- appeal. (1) The department has continuing
jurisdiction over all its orders, decisions, and awards and may, at
any time, upon notice, and after opportunity to be heard is given
to the parties in interest, rescind, alter, or amend any such order,
decision, or award made by it upon good cause appearing therefor.
(2) Any order, decision,
or award rescinding, altering, or amending a prior order, decision,
or award has the same effect as original orders or awards.
(3) If a party is aggrieved
by a department order, the party may appeal the dispute to the workers'
Under this section, it is
plain that the Department may consider the claimant's request to rescind
the 1977 Order. But he is not asking the Department to do so, he is
asking the Court.
¶15 At the time the Division
issued its 1977 Order, the authority of the Court to reconsider prior
awards was set out in R.C.M. 92-848 (4), which provided in relevant
(4) The judge has continuing
jurisdiction of cases in which a petition
under subsection (1) of this section has been filed, and
may, upon the application of any party, review, diminish, or increase
in accordance with the law on benefits . . . any benefits awarded
. . . . upon the grounds that the disability of the person
has changed. [Emphasis added.]
On its face, this provision,
even if presently applicable, does not authorize the Court to rescind
the Division's Order. The jurisdiction conferred is only with respect
to orders and judgments previously issued by the Court.
¶16 The Court's current authority
to review prior orders and awards is governed by section 39-71-2909,
MCA (1997), which provides:
to review, diminish, or increase awards. The judge may, upon
the petition of a claimant or an insurer that the disability of the
claimant has changed or that the claimant received benefits through
fraud or deception, review, diminish, or increase, in accordance with
the law on benefits as set forth in chapter 71 of this title, any
benefits previously awarded by the judge. An insurer's petition
alleging that the claimant received benefits through fraud or deception
must be filed within 2 years after the insurer discovers the fraud
or deception. [Emphasis added.]
On its face, the current
section only applies to prior awards by the Court. It does not apply
to orders by the Department or its predecessor (the Division).
¶17 While it may be argued
that the grant of general jurisdiction to the Court to adjudicate disputes
involving benefits, § 39-71-2905, MCA (1997), applies to subrogation
disputes, section 39-71-2909, MCA, specifically addresses reopening
of prior orders. As the more specific statute, it, rather than the general
jurisdictional provision, is controlling. § 1-2-102, MCA (1997) ("When
a general and particular provision are inconsistent, the latter is paramount
to the former, so a particular intent will control a general one that
is inconsistent with it."); Gibson v. State Compensation Mut. Ins.
Fund, 255 Mont. 393, 396, 842 P.2d 338, 340 (1992).
¶18 The Court therefore lacks
jurisdiction to rescind or reopen the Division's 1977 subrogation Order.
Jurisdiction to consider claimant's request lies with the Department.
This Court's jurisdiction is limited to judicial review of any decision
the Department makes.
¶19 Lacking jurisdiction
over the claimant's request that the 1977 Order be rescinded, this Court
cannot consider the State Fund's substantive challenges to the request.
Those challenges must be considered in the first instance by the Department.
¶20 For the reasons set forth
in the previous discussion, IT IS HEREBY ORDERED that claimant's request
that the September 26, 1977 Order of the Division of Workers' Compensation
be rescinded or set aside is dismissed.
¶21 This partial summary
judgment is NOT certified as final for purposes of
DATED in Helena, Montana,
this 12th day of February, 1999.
c: Mr. Patrick R. Sheehy
Mr. Greg E. Overturf
Date Submitted: February 2, 1999