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Strode v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

March 9, 1994

BUD STRODE Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for BLUE RIBBON BUILDERS Employer.

          ORDER GRANTING RECONSIDERATION; ORDER GRANTING MOTION TO DISMISS IN PART; ORDER DENYING MOTION TO DISMISS IN PART

          Mike McCarter, Judge.

         On February 22, 1994, the Court entered an Order Dismissing Petition. At the time of the Order we had not received any brief in opposition to respondent's motion to dismiss, and the time for filing an opposing brief had expired. In light of petitioner's failure to file an opposing brief, and the apparent merit of the motion, the Court dismissed the petition.

         On the same day as dismissal, but after entry of the Order, the Court received a brief opposing the motion. A conference call was then held with counsel for both parties. Petitioner's counsel explained that in counting the days for his brief he had excluded weekends and holidays. The exclusion is permitted under the Montana Rules of Civil Procedure, Rule 6 (a). It is not permitted under the rules of this Court. ARM 24.5.303. However, the Court recently amended its rules to make it clear that the exclusion does not apply, thus eliminating any confusion that may have arisen within the bar. It is therefore sympathetic to counsel's oversight in this case. The Motion to Reconsider is granted. Counsel practicing before the Court are cautioned that they should familiarize themselves with the rule regarding computation of time. The rule expressly states that weekends and holidays are included in computing time, even where the time for action is 10 days or less.

         Respondent, State Compensation Insurance Fund (State Fund), has been served with a copy of petitioner's opposing brief and has filed a reply brief. The Court now has the full benefit of arguments of both sides and will revisit the motion to dismiss.

         Two petitions have actually been filed herein. The first is styled Claimant's Petition for Review of Final Impairment Rating and was filed on December 30, 1993. It consists of one sentence, as follows:

COMES NOW Claimant, by and through his attorney of record, and moves and petitions this Court for review of the final impairment rating rendered by Dr. Diggs pursuant to Section 39-71-711, MCA (1989).

         The second Petition for Hearing, which will be deemed an amended petition, was filed on January 20, 1994. The second petition renews the challenge to Dr. Diggs' impairment rating and adds a request that the Court order rehabilitation benefits.

         In the prior Order this Court dismissed both claims for relief. The challenge to Dr. Diggs' rating was dismissed because the rating was not a "final impairment rating" over which the Court has jurisdiction under section 39-71-711 (6), MCA (1989). The request for rehabilitation benefits was dismissed because it did not appear that the matter has been mediated.

         There is no basis for retreating from the original conclusion regarding the claim for rehabilitation benefits. Except as otherwise provided within the Workers' Compensation Act, any dispute regarding benefits must first be mediated. Section 39-71-2401 and 2905, MCA (1989). A petition seeking benefits must affirmatively allege that mediation has taken place. ARM 24.5.301 (1)(e). The petition in this case does not do so and the State Fund expressly denies that the matter has been mediated. Thus, on its face the petition fails to set forth facts demonstrating that the mediation perquisite has been satisfied. The claim for rehabilitation benefits is therefore dismissed without prejudice.

         The matter of Dr. Digg's impairment rating is a different and more difficult matter. The injury in this case occurred on September 25, 1989. The parties have proceeded under the law in effect at that time, including section 39-71-711, MCA (1989), which provided an elaborate and since repealed procedure for impairment ratings. Under the section either the claimant or an insurer may request the Department of Labor and Industry (DLI) to designate a physician (a medical doctor or chiropractor) to "evaluate the claimant to determine the degree of impairment, if any, that exists due to the injury." If dissatisfied with the initial evaluator's rating, either party may request an evaluation by a second physician; however, the request automatically triggers appointment of yet a third physician, who must consult with the first two and render a "final impairment rating." All impairment ratings must be based on the "current edition of the Guides to Evaluation of Permanent Impairment." The "final impairment rating" may be appealed to the Worker's Compensation Court within 15 days, but is "presumed correct."[1] The full text of the statute is set out in an endnote.[2]

         The statute has one additional feature: The party requesting the second evaluation is responsible for the costs of both the second and third evaluators. Section 39-71-711(5), MCA. Those costs can be hundreds of dollars. Thus, there is penalty for disputing the first evaluation. That penalty is critical to the Court's analysis of petitioner's claim.

         In his brief, the petitioner has set forth additional facts regarding the dispute over Dr. Digg's evaluation. A motion to dismiss ordinarily tests the facial sufficiency of the complaint Irving v. School Dist. No. 1-1A, Valley County, 248 Mont. 460, 464, 813 P.2d 417 (1991). While this Court has not adopted a specific rule regarding such motions, it has often looked to the Montana Rules of Civil Procedure for guidance where its own rules are silent. See Murer v. State Compensation Mutual Insurance Fund, 257 Mont. 434, 436, 849 P.2d 1036 (1993); Moen v. Peter Kiewit & Sons' Co., 201 Mont. 425, 434655 P.2d 482 (1982). However, in light of this Court's expedited schedule for hearing petitions, and less formal pleading requirements, it will consider the factual representations made in petitioner's brief as supplementing and amending his petition. For purposes of the motion to dismiss, petitioner's contentions are accepted as true. Larson v. First Interstate Bank of Kalispell, 241 Mont. 350, 352, 786 P.2d 1176 (1990).

         According to Mr. Strode, he was injured in a job-related accident on September 25, 1989. On July 19, 1990, his treating physician rendered a two (2%) percent whole man impairment rating. On May 26, 1992, the State Fund declared him to be permanently totally disabled. On October 23, 1993, his physician rendered a new impairment rating of 32 percent based on the 3rd Edition of the Guides to Evaluation of Permanent Impairment. This latter impairment rating apparently triggered the State Fund's November 2, 1993 request to the Department of Labor and Industry (DLI) for appointment of an impairment evaluator pursuant to section 39-71-711, MCA (1989).

         The DLI appointed Dr. Diggs to evaluate Mr. Strode. Dr. Diggs examined Strode on November 29, 1993, and reported a zero (0%) percent impairment. Dr. Diggs, however, refused to furnish either Mr. Strode or his attorney with a copy of his report. Strode's attorney therefore wrote to the DLI demanding a copy of the report. The report was furnished on December 17, 1993. On December 21, 1993, Strode's attorney faxed a letter to the DLI challenging the rating. The letter specifically alleged that the rating was not based on the "current" guides to impairment, as required by section 39-71-711, and was tainted by the DLI's informing Dr. Diggs that his evaluation had been requested by the State Fund. The time for requesting a second evaluator expired on December 31, 1993. Not having heard from the DLI, on December 30, 1993 Strode filed his petition with this Court. In his supporting brief, Strode states that he "will establish facts ...


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