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Industrial Indemnity Insurance Co. v. Ryan

Court of Workers Compensation of Montana

November 30, 1994

INDUSTRIAL INDEMNITY INSURANCE COMPANY Petitioner
v.
ROBERTA RYAN Claimant/Respondent/Cross-Petitioner.

          ORDER ADOPTING FINDINGS OF FACT AND CONCLUSIONS OF LAW OF HEARING EXAMINER AND ENTERING JUDGMENT

          Mike McCarter, Judge

         The above-entitled matter was duly heard by Court-appointed Hearing Examiner, CLARICE V. BECK, 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.

         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 is not entitled to further compensation benefits on account of her August 25, 1986 injury.

         3.Claimant is not entitled to attorney fees, costs or a penalty.

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

         5.Any party to this dispute may have twenty (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.

         PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

         The trial in this matter was held on October 11, 1994, in Missoula, Montana before Court- appointed Hearing Examiner, Clarice V. Beck. Petitioner, Industrial Indemnity Insurance Company (Industrial Indemnity), was represented by Mr. Charles E. McNeil. Respondent\claimant\cross-petitioner, Ms. Roberta Ryan (claimant or Ryan), did not appear at trial or provide any information regarding her failure to appear. At trial no witnesses were called. Exhibits 1-41 were admitted into evidence. The depositions of Dr. Stephen Ellis, Sue Hash and Nancy Conley were admitted and will be considered in the decision. (Claimant participated in all three depositions.)

         Industrial's Petition for Hearing was filed on May 21, 1993. A pretrial conference was scheduled for July 27, 1993, and the trial was set for August 30, 1993, in Missoula, Montana. Claimant did not appear at the time set for the pretrial conference and petitioner requested the trial be vacated and reset. Subsequently, by motion filed August 2, 1993, claimant also requested a continuance. The trial was reset to November 8, 1993. On September 8, 1993, due to the appointment of a new Workers' Compensation Judge, the trial was reset to January 17, 1994.

         In her initial response Ryan questioned the appropriateness of the insurer petitioning for a determination of her benefits. To address this question, on November 3, 1993, the Court ordered Industrial Indemnity to show cause why its petition should not be dismissed, and vacated the trial setting. In response to this order Ryan filed a motion for an emergency telephonic hearing requesting a lump sum advance and raising numerous other issues for the Court's consideration. Due to the ambiguity of Ryan's request, the Court ordered Ryan to clarify her position. Ryan was specifically advised that should she wish to pursue her requests, her issues would be treated as a counter-petition. On December 13, 1993, Ryan requested that her issues be considered as a counter-petition, thus placing the issue of her entitlement to benefits before the Court.

         On January 24, 1994, claimant advised the Court of her preference to have the trial held in Billings, Montana during the week of April 25, 1994. This request was granted. On March 21, 1994, claimant requested a further continuance. The request was granted and the trial was reset to the week of August 15, 1994, in Billings, Montana.

         Thereafter a telephonic conference was arranged by the Court and conducted by Judge McCarter. The claimant requested that the venue be changed and the trial reset in Missoula. This request was granted and the trial was reset to October 11, 1994, in Missoula, Montana. An Order Regarding Scheduling was issued by the Court on August 3, 1994. The parties were advised that no further continuances would be granted.

         A pretrial conference was held as scheduled on October 3, 1994, in Missoula, Montana. Counsel for Industrial Indemnity, Mr. Charles E. McNeil, was present. Claimant did not attend and did not inform the Court why she failed to do so.

         On October 11, 1994, the trial was convened as scheduled at 9:00 a.m. in Missoula, Montana. Claimant was not present. The Court recessed and reconvened the trial at 1:00 p.m. to avoid any confusion which may have occurred as the result of the Pretrial Order indicating the trial was scheduled for 1:00 p.m. rather than 9:00 a.m. Ms. Ryan did not appear and did not contact the Court. Industrial Indemnity presented its case through exhibits and depositions. At the close of the proceeding the parties were directed to file proposed findings of fact and conclusions of law on or before October 31, 1994. (Trial Minutes; Memo of October 14, 1994.) The Court file shows the certified mail containing the minutes of the trial and the memo of October 14, 1994, were signed for by John Ryan, claimant's spouse. The time has expired for the filing of proposed findings of fact and conclusions of law. The Court has received proposed findings from Industrial Indemnity but not from Ryan. The matter is deemed submitted.

         Issues Presented: Industrial Indemnity requests a determination of its further liability, if any, on account of claimant's August 25, 1986 injury. Ryan in her pleadings requested temporary total or permanent total disability benefits, 500 weeks of permanent partial disability benefits, a lump sum conversion of any benefits to which she may be entitled, attorney fees and costs, and a twenty (20%) percent penalty. Ryan did not appear at trial or at the pretrial conference and did not present any witnesses, exhibits or other evidence in support of her requests.

         Having considered the Final Pretrial Order, the deposition testimony, the trial exhibits and petitioner's brief, the Court makes the following:

         FINDINGS ...


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