SAMUEL J. GRENZ Appellant
FIRE AND CASUALTY OF CONNECTICUT Respondent.
DECISION ON APPEAL; ORDER REVERSING AND
an appeal by Samuel J. Grenz (Grenz) from a decision of the
Montana Department of Labor and Industry (DLI) dismissing his
claim for occupational disease as time-barred. Without
hearing, in an Order on Motion Dismissal [sic] the DLI
hearing examiner granted the insurer's motion to dismiss.
Grenz is well known to the Montana courts, having prosecuted
some six petitions before the Workers' Compensation
Court, four separate civil actions in Montana district
courts, one civil action in the United States District Court
for Montana, and eleven appeals to the Montana Supreme Court.
All of these cases were driven by Grenz' claim for
compensation following an industrial accident on August 22,
1984, and are described in detail in briefs filed by the
insurer, Fire and Casualty of Connecticut (F&C), with
both the DLI and this Court. In the DLI proceeding F&C
vigorously argued: "He [Grenz] has litigated enough. The
time to end this stream of disputation is now." (DLI
Record on Appeal, Brief in Support of Insurer's Motion at
12.) All of this, however, cannot distract this Court from
its obligation to consider the present appeal on its own
merits. As Justice Gray stated in her opinion in Grenz v.
Fire & Casualty of Connecticut, 255 Mont. 121, 124,
841 P.2d 494 (1992):
It is appropriate to note here that we sympathize with the
frustration and expense these proceedings have caused all
involved. Indeed, we previously have expressed our concern
over the multiplicity of claimant's proceedings and the
overall "cost" of those proceedings to the finite
resources of the judicial system. See Grenz v. Medical
Management Northwest (1991), 250 Mont. 58, 64, 817 P.2d
1151, 1155. We reiterate that concern here; it has not
lessened. We must be ever vigilant, however, in
ensuring that human propensities to frustration over
seemingly endless litigation do not result in less than the
full and fair consideration on legal principles to which
litigants are entitled in Montana's courts.
carefully reviewing the record below and the DLI Order, I
find that the proceedings were irregular and that the
conclusion of the hearing examiner was erroneous as a matter
History and Decision Below
record on appeal consists of the DLI file. The file begins on
August 20, 1993 with the filing of
Insurer's Motion to Dismiss; Insurer's Motion for
Judicial Notice; and Brief in Support of Insurer's Motion
to Dismiss. In addition to motions and orders for extension,
the file contains further legal memoranda by both parties; a
copy of the 1993 Supreme Court decision in Grenz v. Fire
and Casualty of Connecticut, 857 P.2d 730 (Mont. 1993);
a short affidavit of Mr. Grenz in which he states, in part,
that "I, up until September of 1990, did not know that
my arthritic condition may be the result of a [sic]
occupational disease"; two pages of a transcript of a
September 17 and 18, 1990 hearing before the Workers'
Compensation Court (attached by Grenz to Claimant's Reply
Brief); miscellaneous correspondence; the hearing
examiner's Order on Motion Dismissal [sic]; and notices
regarding appeal. There was no hearing; there is no
transcript. The case was summarily decided.
on the record, it appears that Grenz filed an occupational
disease (OD) claim in February 1992. We use the word
"appears" because neither the original nor a copy
of the claim can be found in the DLI record. In February 1992
Grenz also filed a worker's compensation claim alleging
an injury due to micro-trauma while employed in 1984 and
1985. He also filed a Petition seeking adjudication of the
micro-trauma claim. (Grenz v. Fire & Casualty of
Connecticut, WCC No. 9202-6378, Order on Remand (April
21, 1993).) This Court ultimately determined that the
micro-trauma claim was time-barred by the one year statute of
limitations applicable to workers' compensation claims,
section 39-71-601, MCA, and the Supreme Court affirmed,
Grenz v. Fire and Casualty of Connecticut, 857 P.2d
730 (Mont. 1993).
Grenz was litigating his micro-trauma claim, the DLI
apparently took no action on the OD claim. The Insurer's
Motion to Dismiss, filed below, refers to a December 16,
1992, DLI letter "advis[ing] that no action would be
taken on the above claim of Occupational Disease benefits
until a final decision was reached is [sic] WCC No.
9202-6378." A copy of the DLI letter is not a part of
the DLI record.
event, the proceeding below was triggered by F&C's
filing of the Insurer's Motion to Dismiss. The motion
On December 16, 1992, Claims Examiner Barb Gullickson wrote
to claimant and Insurer to advise that no action would be
taken on the above claim for Occupational Disease benefits
until a final decision was reached is [sic] WCC No.
9202-6378. A copy of that final decision is attached hereto.
Insurer now moves for a determination that the above
Occupational Disease claim is time-barred, on the same
grounds and for the same reasons as set forth in the decision
of the Montana Supreme Court affirming dismissal of WCC No.
9202-6378, thereby effectively dismissing said Occupational
Contested case treatment of this motion is
requested. [Emphasis added.]
conjunction with the motion, F&C also filed an
Insurer's Motion for Judicial Notice requesting that the
hearing examiner "take judicial notice of the entirety
of the contents of Grenz v. Fire and Casualty of
Connecticut, WCC No. 9202-6378, including, but not
limited to, the Final Decision on Appeal, No. 93-232, Supreme
Court of Montana, August 17, 1993. A copy of the Supreme
Court decision was provided to the hearing examiner and is
part of the DLI file. However, there is nothing in the DLI
file indicating that the hearing examiner reviewed the file
of the Workers' Compensation Court in WCC No.
9202-6378, and there is no reference to the file or to
file documents in the hearing examiner's Final Order.
hearing examiner's Order is brief, consisting of two
pages. The first page contains a brief historical overview of
Grenz's claims and prior litigation. Other than a
quotation of the applicable statute of limitations, section
39-72-403, MCA, the actual decision consists of one
paragraph, which states in its entirety:
The Insurer moved to dismiss this claim as time barred.
Supporting Brief, Claimant Reply Brief as well as Insurer
Reply Brief were submitted and considered. The undisputed
facts relating to the injury and the Claimant's knowledge
of the injury and its cause as found in the "protracted
litigation" as well as the Claimant's awareness of
the law support dismissal of this occupational disease claim
as time barred. The Claimant knew his total disability
condition resulted from an occupational disease or was simply
as time passed deciding under what worker compensation
statute to proceed. Regardless of how the Claimant wishes to
describe his medical condition, he has demonstrated he knew
or should have known his condition resulted from an
occupational disease and did not file timely.
Insurer's motion to dismiss is hereby granted.
and dated this 19th day of October, 1993.
and Standard of Review
appeal both parties have filed affidavits and attached
numerous documents. Some of the documents are Court
decisions, but others are not. The attempt to factually
supplement the record is improper, especially in light of the
DLI's dismissal of the claim without a hearing or an
opportunity to present evidence. Our review of the decision
below the Court will be limited to the DLI record.
Amended Notice of Appeal, Grenz, who appears pro sé,
makes a point-by-point rebuttal to the hearing examiner's
Order. In sum and substance, he alleges that the decision