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Wray v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

October 26, 1993

BRIAN WRAY Petitioner
v.
STATE COMPENSATION INSURANCE FUND/HARP LINE CONSTRUCTION COMPANY Defendant/Employer.

          Submitted: July 22, 1993

          Counsel of Record: Mr. Darrell S. Worm Attorney at Law.

          Mr. Thomas R. Bostock Attorney at Law.

          ORDER ADOPTING FINDINGS OF FACT AND CONCLUSIONS OF LAW OF HEARING EXAMINER AND ENTERING JUDGMENT

          Mike McCarter JUDGE

         The 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.

         Thereupon, 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.

         IT IS HEREBY ORDERED the Findings of Fact and Conclusions of Law and Proposed Judgment of the Hearing Examiner are adopted.

         IT IS FURTHER ORDERED the Judgment is to be entered as follows:

         JUDGMENT

         1. This Court has jurisdiction over this matter pursuant to section 39-71-2905, MCA.

         2. 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.

         3. 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.

         4. Claimant is not entitled to attorney fees and costs.

         5. The JUDGMENT herein is certified as final for purposes of appeal pursuant to ARM 24.5.348.

         6. Any 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.

         FINDINGS OF FACT AND CONCLUSIONS OF LAW AND PROPOSED JUDGMENT

         1. Claimant filed a petition to resolve a dispute between himself and the insurer under Title 39, Chapter 71, Part 29, MCA.

         2. The 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.

         3. A 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:

         I. STATEMENT OF JURISDICTION

The Workers' Compensation Court has jurisdiction in this matter pursuant to M.C.A. Section 39-71-2905. (1981)
. . . .

         III. 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 accident.
B. That at the time of the injury, the Employer was enrolled under Compensation Plan No. 3 of the Workers' Compensation Act.
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 ...

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