ORDER ADOPTING FINDINGS OF FACT AND CONCLUSIONS OF
LAW OF HEARING EXAMINER AND ENTERING JUDGMENT
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.
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.
HEREBY ORDERED the Findings of Fact and Conclusions of Law
and Proposed Judgment of the Hearing Examiner are adopted.
FURTHER ORDERED the Judgment is to be entered as follows:
Court has jurisdiction over this matter pursuant to section
is not entitled to further compensation benefits on account
of her August 25, 1986 injury.
is not entitled to attorney fees, costs or a penalty.
JUDGMENT herein is certified as final for purposes of appeal
pursuant to ARM 24.5.348.
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.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
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.)
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.
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.
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.
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.
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.
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.
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.
considered the Final Pretrial Order, the deposition
testimony, the trial exhibits and petitioner's brief, the
Court makes the following: