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State Compensation Insurance Fund v. Garcia

Court of Workers Compensation of Montana

November 29, 1993

STATE COMPENSATION INSURANCE FUND Petitioner
v.
HENRY G. GARCIA Claimant/Respondent.

          Counsel of Record: Mr. Charles G. Adams Legal Counsel.

          Mr. Kenneth R. Olson Attorney at Law.

          ORDERADOPTING FINDINGS OF FACT AND CONCLUSIONS OF LAW OF HEARING EXAMINER AND ENTERING JUDGMENT

          JEFFREY SHERLOCK

         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.

         The Workers' Compensation Judge recused himself in the above-entitled matter. The Honorable Jeffrey Sherlock, District Judge of the First Judicial District, assumed jurisdiction on October 8, 1993.

         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. Claimant's former counsel, Kurt M. Jackson, was properly dismissed June 28, 1993 as a party herein.

         3. Petitioner, State Fund, has not presented sufficient credible evidence to show a change in claimant's disability since the April 4, 1990 Judgment of this Court awarding permanent partial benefits to the claimant.

         4. Petitioner, State Fund, is not entitled to reimbursement of any attorney fees paid by it as a result of this Court's Orders of April 4, 1990 and May 18, 1990.

         5. Co-Respondent Kurt M. Jackson is not entitled to additional attorney fees and costs for defense of this action pursuant to section 39-71-612, MCA (1985).

         6. Respondent Henry G. Garcia is not entitled to attorney fees and costs for the defense of this action pursuant to section 39-71-612, MCA (1985).

         7. Any party to this dispute may have 20 days in which to request a rehearing from these Findings of Fact and Conclusions of Law and Proposed Judgment.

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

         9. 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.

         ON BEHALF OF THE RESPONDENT

         FINDINGS OF FACT AND CONCLUSIONS OF LAW AND PROPOSED JUDGMENT

         1. Petitioner filed this action to resolve a dispute between itself, the claimant and claimant's former counsel. The dispute arose 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 December 29, 1992 and January 29, 1993, before Clarice V. Beck, Hearing Examiner. The Pretrial Order was docketed on March 15, 1993. Pertinent parts of the Pretrial Order are as follows:

         I. STATEMENT OF JURISDICTION

         The Workers' Compensation Court has jurisdiction in the above-entitled matter pursuant to Section 39-71-2905, MCA. However, Co-Respondent does not agree that the Workers' Compensation Court has jurisdiction over him in the above-entitled matter. Co-Respondent has filed a motion to dismiss or for summary judgment contending that the Court lacks jurisdiction over the corespondent under § 39-71-2909, M.C.A., the statute under which petitioner seeks reimbursement of attorney fees. [MOTION DENIED.]

         . . . .

         III. STATEMENT OF UNCONTESTED FACTS

1. Claimant injured his low back on February 17, 1986, in an industrial accident while employed by Vita-Rich Dairy, Inc. Claimant's injury occurred in Great Falls, Cascade County, Montana. Claimant's employer was based in Havre, Montana. (Petitioner's Exhibit "A").
2. At the time of the injury, Claimant's employer was enrolled under Plan No. III of the Workers' Compensation Act, and its insurer is the State Compensation Mutual Insurance Fund.
3. Petitioner State Fund accepted liability for Claimant's industrial accident of February 17, 1986. Claimant received temporary total and permanent partial disability and medical benefits through his claim.
4. The subject industrial injury claim occurred prior to July 1, 1987 and the mandatory, non-binding mediation provisions of the Montana Workers' ...

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