ORDER DENYING ATTORNEY FEES, COSTS AND PENALTY; ORDER
DENYING REQUEST FOR JUDGMENT
Court's order of March 7, 1994, sets forth a brief
history of the proceedings in this case and will not be
restated. The remaining issues to be considered are
petitioner's claim for attorney fees, costs and a
penalty. On March 25, 1994, claimant submitted his Brief on
Expenses, Costs, Penalties and a document entitled Expenses,
Costs; Submitted to the Court for Reimbursement. Also, on
March 25, 1994, the State Fund's Brief in Response to
Request for Payment of Attorney Fees, Costs and Penalty was
filed. Claimant supplemented his information by letter which
was received on March 28, 1994 and on April 7, 1994, filed
his Reply to S.C.M.I.F.'s Brief on Expenses, Costs, and
March 29, 1994, claimant filed a Request for Judgment wherein
he alleged the State Fund had failed to comply with the time
requirement for filing briefs as set by the Court, and State
Fund responded to this request on March 30, 1994. The Request
for Judgment is denied. The Court record
clearly shows that the brief was timely filed in the
Workers' Compensation Court and the certificate of
mailing indicates a copy was sent to Mr. Rathmann.
statutes in effect at the time of the injury govern any
determination by the Workers' Compensation Court with
regard to benefits and attorney fees. Caldwell v. Great
Western Sugar Co., 229 Mont. 448, 746 P.2d 627 (1987).
claimant submits multiple pages and expends considerable time
discussing indemnification for his efforts, calling the
Court's attention to various statutes dealing with:
subrogation; Titles 2 and 27; sections 21-1-202 and
37-61-421, MCA. The applicable statute for the determination
of a penalty for an injury occurring in 1988 is section
39-71-2907, MCA (1987).
39-71-2907. Increase in award for unreasonable delay
or refusal to pay. (1) When payment of compensation
has been unreasonably delayed or refused by an insurer,
either prior or subsequent to the issuance of an order by the
workers' compensation judge granting a claimant
compensation benefits, the full amount of the compensation
benefits due a claimant between the time compensation
benefits were delayed or refused and the date of the order
granting a claimant compensation benefits may be increased by
the workers' compensation judge by 20%. The question of
unreasonable delay or refusal shall be determined by the
workers' compensation judge, and such a finding
constitutes good cause to rescind, alter, or amend any order,
decision, or award previously made in the cause for the
purpose of making the increase provided herein.
sole issue presented by this petition following this
Court's dismissal of issues which had not been mediated,
was which insurer was liable. That issue was resolved without
an adjudication by the Court.
discussion of the chronology of these proceedings may be
helpful in resolving the pending motions. The Court record
reflects that the petition was filed in December of 1992, but
due to the claimant's failure to mediate various issues
the trial was vacated. In February 1993 Claimant's Motion
for Partial Summary Judgment was filed. In March of 1993,
claimant decided to represent himself and fired his attorney.
By letter dated March 22, 1993, the Court requested
information from the claimant regarding whether he wished to
pursue the Motion for Summary Judgment filed on his behalf by
his former attorney. Again in August of 1993, the Court
requested a status report from the parties and claimant
responded by letter dated August 25, 1993, requesting that
the motion be decided. The claimant also advised the Court of
time constraints as a result of being enrolled for classes at
the University. Following briefing, the Court scheduled oral
argument, which at the claimant's request was scheduled
for January 18, 1994. By letter dated February 8, 1994, the
State Fund accepted liability for the claimant's injury,
thus resolving the dispute without the need for an
adjudication. Therefore, an Order dismissing all parties
except the State Fund was issued.
Court finds that there has not been an unreasonable delay in
these proceedings and that there is no basis for a penalty.
The controversy among the insurers and the other parties
involved highly technical issues of law. The Court is unable
to characterize the State Fund's position as beyond the
pale of legitimate legal argument and therefore cannot
characterize its actions as unreasonable.
claimant is not entitled to attorney fees because he is not
an attorney. As the Supreme Court decided in Lussy v.
Bennett, 214 Mont. 301, 308, 692 P.2d, 1232 (1984).
purports to bring himself within the statute allowing
attorney fees, on the basis that he was the attorney-in-fact
for the members of his family. Of course he is confusing an
attorney authorized to practice law with a
person clothed with the powers of an agent. He further claims
that by proceeding pro se, he is in truth an ...