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Rykowsky v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

December 9, 1994

BETH RYKOWSKY Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent.

          ORDER DENYING MOTION TO DISMISS; ORDER TO SHOW CAUSE WHY SANCTIONS SHOULD NOT BE IMPOSED

          Mike McCarter JUDGE

         Summary: In order to meet deadline for next Missoula trial term, counsel for claimant filed a petition alleging that mediation requirements had been satisfied. In fact, while mediation had been held, and counsel asserted that both parties knew the case would not settle through mediation, the mediator had not yet issued the mediation report.

         Held: Under section 39-71-2411, MCA (1993), the Workers' Compensation Court does not have jurisdiction until a mediator has issued the mediation report and at least one party does not accept the mediator's recommendation. Counsel's statement in the petition that mediation requirements were satisfied was at best misleading, leading the Court to require counsel to show cause why sanctions should not be imposed upon him. While the Court understands counsel's desire for speedy resolution of his client's claim, the Workers' Compensation Court rules and procedures allow application for emergency trial if a true exigency exists. The Court also typically cooperates with special settings. Those procedures should have been followed.

         Topics:

Constitutions, Statutes, Regulations, and Rules: Montana Code Annotated: section 39-71-2411(6), MCA (1993). Under section 39-71-2411, MCA (1993), the Workers' Compensation Court does not have jurisdiction until a mediator has issued the mediation report and at least one party does not accept the mediator's recommendation. Counsel's statement in the petition that mediation requirements were satisfied was at best misleading where in fact no mediation report had issued, leading to the Court's order to show cause why sanctions should not be imposed upon him. While the Court understands counsel's desire for speedy resolution of his client's claim, the Workers' Compensation Court rules and procedures allow application for emergency trial if a true exigency exists. The Court also typically cooperates with special settings. Those procedures should have been followed.
Mediation. Under section 39-71-2411, MCA (1993), the Workers' Compensation Court does not have jurisdiction until a mediator has issued the mediation report and at least one party does not accept the mediator's recommendation. Counsel's statement in the petition that mediation requirements were satisfied was at best misleading where in fact no mediation report had issued, leading to the Court's order to show cause why sanctions should not be imposed upon him. While the Court understands counsel's desire for speedy resolution of his client's claim, the Workers' Compensation Court rules and procedures allow application for emergency trial if a true exigency exists. The Court also typically cooperates with special settings. Those procedures should have been followed.
Jurisdiction: Mediation. Under section 39-71-2411, MCA (1993), the Workers' Compensation Court does not have jurisdiction until a mediator has issued the mediation report and at least one party does not accept the mediator's recommendation. Counsel's statement in the petition that mediation requirements were satisfied was at best misleading where in fact no mediation report had issued, leading to the Court's order to show cause why sanctions should not be imposed upon him. While the Court understands counsel's desire for speedy resolution of his client's claim, the Workers' Compensation Court rules and procedures allow application for emergency trial if a true exigency exists. The Court also typically cooperates with special settings. Those procedures should have been followed.

         The respondent has moved to dismiss the petition on account of petitioner's failure to complete mediation prior to the filing of the petition on November 7, 1994. The motion has been briefed by both parties and is deemed submitted.

         The petition in this case was filed on the last day permitted for it to be placed on the trial calendar for the next term of Court in Missoula. That term is the week of January 18, 1995.

         Petitioner argues that it was necessary to file the petition on November 7, 1994, to ensure a trial during the next Missoula term. She acknowledges that the mediation requirements had not been technically satisfied on the date of filing but argues that they were completed in spirit. Petitioner's counsel informs the Court that a mediation conference was held on October 31, 1994, and that at that time "both counsel knew the case was not going to be resolved in the mediation process." (Response to Motion to Dismiss at 2.) Petitioner's attorney requested the mediator to issue an expedited recommendation so the filing deadline could be met. When the recommendation was not forthcoming, he filed the petition anyway.

         In prior orders this Court has held that the mediation statutes require the mediation requirements to be fully satisfied before the filing of any petition. The Court previously dismissed a petition filed by petitioner's present attorney because it was filed before the mediator had made a written recommendation. Cindy L. Hill v. State Compensation Insurance Fund, WCC No. 9407-7086 (July 26, 1994 Order Dismissing Without Prejudice). In its Order the Court specifically directed petitioner's attorney to section 39-71-2411(6), MCA, which provides:

(6) A party shall notify the mediator within 45 days of the mailing of his report whether the party accepts the mediator's recommendation. If either party does not accept the mediator's recommendation, the party may petition the workers' compensation court for resolution of the dispute. [Emphasis and italics added.]

         In his brief, petitioner's counsel does not argue that the mediation requirements had been met at the time the petition was filed, only that "mediation was substantially complete by 10/31/94 and totally complete prior to the filing of the motion to dismiss." (Response to Motion to Dismiss at 5; italics added.)

         The rules of this Court require that petitions for accidents occurring after July 1, 1987, contain "a statement that the mediation provisions set forth in section 39-71-2411, MCA, have been complied with." ARM 24.5.301(1)(e). ...


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