Submitted: July 22, 1993
Counsel of Record: Mr. Darrell S. Worm Attorney at Law.
Thomas R. Bostock Attorney at Law.
ORDER ADOPTING FINDINGS OF FACT AND CONCLUSIONS OF
LAW OF HEARING EXAMINER AND ENTERING JUDGMENT
above-entitled matter was duly heard by Court-appointed
Hearing Examiner, ROBERT J. CAMPBELL who conducted the
hearing, considered the evidence and prepared and submitted
Findings of Fact and Conclusions of Law and Proposed Judgment
for consideration by the Court.
the Court considered the record in the above- captioned
matter, considered the Findings of Fact and Conclusions of
Law and Proposed Judgment of the Hearing Examiner and does
hereby make and enter the following Order and Judgment.
HEREBY ORDERED the Findings of Fact and Conclusions of Law
and Proposed Judgment of the Hearing Examiner are adopted.
FURTHER ORDERED the Judgment is to be entered as follows:
Court has jurisdiction over this matter pursuant to section
Defendant is entitled to continue recouping the sum of $39.95
from claimant's current bi-weekly benefits. Defendant is
further entitled to reduce the claimant's bi-weekly
benefits by the additional sum of $17.32 per week, to recoup
the overpayment resulting from the payment of auxiliary
social security disability benefits not previously reported
to the defendant.
Defendant was reasonable in the payment of claimant's
benefits and claimant is not entitled to a penalty pursuant
to Section 39-71-2907, MCA.
Claimant is not entitled to attorney fees and costs.
JUDGMENT herein is certified as final for purposes of appeal
pursuant to ARM 24.5.348.
party to this dispute may have 20 days in which to request a
rehearing from this Order Adopting Findings of Fact and
Conclusions of Law and Proposed Judgment of the Hearing
Examiner and Entering Judgment.
OF FACT AND CONCLUSIONS OF LAW AND PROPOSED JUDGMENT
Claimant filed a petition to resolve a dispute between
himself and the insurer under Title 39, Chapter 71, Part 29,
Clerk of Court gave notice to interested parties of (a) the
time, place and nature of the trial; (b) the legal authority
and jurisdiction under which the trial was to be held; (c)
the particular sections of the statutes and rules involved;
and (d) the matters asserted by notifying all parties who
appeared of record to have an interest by mailing to them a
copy of the ORDER SETTING TRIAL AND PRETRIAL CONFERENCE with
a copy of the PETITION FOR HEARING attached and a copy of the
Clerk's Certificate of Mailing the Order and Petition.
Section 2-4-601, MCA.
pretrial conference was conducted on January 28, 1993, before
Clarice V. Beck, Hearing Examiner. The Pretrial Order was
docketed on May 12, 1993. Pertinent parts of the Pretrial
Order are as follows:
STATEMENT OF JURISDICTION
The Workers' Compensation Court has jurisdiction in this
matter pursuant to M.C.A. Section 39-71-2905. (1981)
. . . .
STATEMENT OF UNCONTESTED FACTS
A. 1On December 5, 1985, the Claimant suffered an industrial
injury arising out of and in the course of his employment
with Harp Line Construction Company, in Kalispell, Flathead
County, Montana. The Claimant injured his cervical back when
he suffered a blow to the head while climbing onto earth
moving equipment he was preparing to operate. The Claimant
has undergone surgery and has received medical care since the
B. That at the time of the injury, the Employer was enrolled
under Compensation Plan No. 3 of the Workers'
C. A dispute has arisen between the Claimant and the
Defendant regarding the recoupment by the State Fund of lump
sum advances paid to the Claimant and the termination of
authorization for chiropractic treatment and for medication.
The parties have made an effort to resolve this dispute but
have been unable ...