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Grenz v. Fire and Casualty of Connecticut

Court of Workers Compensation of Montana

April 21, 1994

SAMUEL J. GRENZ Appellant
v.
FIRE AND CASUALTY OF CONNECTICUT Respondent.

          DECISION ON APPEAL; ORDER REVERSING AND REMANDING

          Mike McCarter JUDGE

         This is 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.

         Mr. 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. [Emphasis added.]

         After 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 of law.

         Procedural History and Decision Below

         The 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.

         Based 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).

         While 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."[1] A copy of the DLI letter is not a part of the DLI record.

         In any event, the proceeding below was triggered by F&C's filing of the Insurer's Motion to Dismiss. The motion stated:

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 Disease Claim.
Contested case treatment of this motion is requested. [Emphasis added.]

         In 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.

         The 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.

         ORDER

         The Insurer's motion to dismiss is hereby granted.

         Entered and dated this 19th day of October, 1993.

         Scope and Standard of Review

         On 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.

         In his 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 ...


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