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Gomez v. Montana Municipal Insurance Authority

Court of Workers Compensation of Montana

January 27, 1995

JOHN A. GOMEZ Petitioner
v.
MONTANA MUNICIPAL INSURANCE AUTHORITY Respondent/Insurer for CITY OF MISSOULA Employer.

          ORDER GRANTING IN PART/DENYING IN PART THE MOTION TO DISMISS

          Mike McCarter Judge

         Summary: In response to claimant's petition for occupational disease benefits, respondent self-insurer moved to dismiss on jurisdictional grounds, arguing that claimant must pursue his claims in proceedings before the Montana Department of Labor and Industry.

         Held: Motion to dismiss granted with respect to claimant's demand for $10, 000 under section 39-72-405, MCA (1991), but otherwise denied. Where the insurer has accepted liability, but disputes arise as to amount and nature of benefits, the procedures of sections 39-72-602 and -611, MCA (1991), leading to a Department of Labor and Industry order and hearing, are not applicable. In those situations, sections 39-71-2401 and -2411, provide the Workers' Compensation Court with original jurisdiction over disputes over benefits under the Occupational Disease Act following mediation. However, because the 1991 version of section 39-72-405, MCA authorized "the department" to allow compensation of up to $10, 000 under that statute, and Carmichael v. Workers' Compensation Court, 234 Mont. 410 (1988) does not allow this Court to apply new statutory provisions to claimant's request under section 405, that dispute must first be heard in the Department of Labor.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-72-405, MCA (1991). Where the insurer has accepted liability, but disputes arise as to amount and nature of benefits, the procedures of sections 39-72-602 and -611, MCA (1991), leading to a Department of Labor and Industry order and hearing, are not applicable. In those situations, sections 39-71-2401 and -2411, provide the Workers' Compensation Court with original jurisdiction over disputes over benefits under the Occupational Disease Act following mediation. However, because the 1991 version of section 39-72-405, MCA authorized "the department" to allow compensation of up to $10, 000 under that statute, and Carmichael v. Workers' Compensation Court, 234 Mont. 410 (1988) does not allow this Court to apply new statutory provisions to claimant's request under section 405, that dispute must first be heard in the Department of Labor.
Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-2401 and -2411, MCA (1991). Where the insurer has accepted liability, but disputes arise as to amount and nature of benefits, the procedures of sections 39-72-602 and -611, MCA (1991), leading to a Department of Labor and Industry order and hearing, are not applicable. In those situations, sections 39-71-2401 and -2411, provide the Workers' Compensation Court with original jurisdiction over disputes over benefits under the Occupational Disease Act following mediation. However, because the 1991 version of section 39-72-405, MCA authorized "the department" to allow compensation of up to $10, 000 under that statute, and Carmichael v. Workers' Compensation Court, 234 Mont. 410 (1988) does not allow this Court to apply new statutory provisions to claimant's request under section 405, that dispute must first be heard in the Department of Labor.
Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-72-602, MCA (1991). Where the insurer has accepted liability, but disputes arise as to amount and nature of benefits, the procedures of sections 39-72-602 and -611, MCA (1991), leading to a Department of Labor and Industry order and hearing, are not applicable. In those situations, sections 39-71-2401 and -2411, provide the Workers' Compensation Court with original jurisdiction over disputes over benefits under the Occupational Disease Act following mediation. However, because the 1991 version of section 39-72-405, MCA authorized "the department" to allow compensation of up to $10, 000 under that statute, and Carmichael v. Workers' Compensation Court, 234 Mont. 410 (1988) does not allow this Court to apply new statutory provisions to claimant's request under section 405, that dispute must first be heard in the Department of Labor.
Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-72-611, MCA (1991). Where the insurer has accepted liability, but disputes arise as to amount and nature of benefits, the procedures of sections 39-72-602 and -611, MCA (1991), leading to a Department of Labor and Industry order and hearing, are not applicable. In those situations, sections 39-71-2401 and -2411, provide the Workers' Compensation Court with original jurisdiction over disputes over benefits under the Occupational Disease Act following mediation. However, because the 1991 version of section 39-72-405, MCA authorized "the department" to allow compensation of up to $10, 000 under that statute, and Carmichael v. Workers' Compensation Court, 234 Mont. 410 (1988) does not allow this Court to apply new statutory provisions to claimant's request under section 405, that dispute must first be heard in the Department of Labor.
Occupational Disease: Indemnity (39-72-405) Awards. Where the insurer has accepted liability, but disputes arise as to amount and nature of benefits, the procedures of sections 39-72-602 and -611, MCA (1991), leading to a Department of Labor and Industry order and hearing, are not applicable. In those situations, sections 39-71-2401 and -2411, provide the Workers' Compensation Court with original jurisdiction over disputes over benefits under the Occupational Disease Act following mediation. However, because the 1991 version of section 39-72-405, MCA authorized "the department" to allow compensation of up to $10, 000 under that statute, and Carmichael v. Workers' Compensation Court, 234 Mont. 410 (1988) does not allow this Court to apply new statutory provisions to claimant's request under section 405, that dispute must first be heard in the Department of Labor.
Administrative Procedure: Contested Case Hearing: DLI Jurisdiction. Where the insurer has accepted liability, but disputes arise as to amount and nature of benefits, the procedures of sections 39-72-602 and -611, MCA (1991), leading to a Department of Labor and Industry order and hearing, are not applicable. In those situations, sections 39-71-2401 and -2411, provide the Workers' Compensation Court with original jurisdiction over disputes over benefits under the Occupational Disease Act following mediation. However, because the 1991 version of section 39-72-405, MCA authorized "the department" to allow compensation of up to $10, 000 under that statute, and Carmichael v. Workers' Compensation Court, 234 Mont. 410 (1988) does not allow this Court to apply new statutory provisions to claimant's request under section 405, that dispute must first be heard in the Department of Labor.

         The petitioner in this matter seeks benefits under the Montana Occupational Disease Act (ODA). Respondent has moved to dismiss on jurisdictional grounds, arguing that the questions presented by the Petition for Hearing must be pursued in proceedings before the Montana Department of Labor and Industry (DLI). After considering the motion and briefs, the Court dismisses one of the claims but otherwise denies the motion.

         The petitioner is John A. Gomez (Gomez). In his Petition for Hearing Gomez initially alleges that on August 12, 1991, he suffered an industrial accident involving the inhalation of paint fumes. However, as he clarifies in his Petitioner's Brief Opposing Defendant's Motion to Dismiss, the allegations concerning this accident are for informational purposes only:

The industrial accident Workers' Compensation claim is noticed for the court's information, and it is not known at this time whether it has caused any permanent disability. All medical and other benefits arising under that claim are believed already paid. [Capitalization in the original.]

         The Petition for Hearing goes on to allege, and respondent does not dispute, that between May of 1989 and June of 1992 Gomez also suffered an occupational disease arising out of his exposure to various paints, solvents and chemicals. (Petition for Hearing, ¶2-2a.) Gomez filed a claim for occupational disease and the claim was accepted by his employer's insurer, Montana Municipal Insurance Authority (MMIA). (Petition for Hearing ¶s 2b and 3; Response to Petition ¶ 2.) The MMIA, however, determined that only fifty (50%) percent of Gomez' condition was attributable to occupational exposure and that the remaining fifty (50%) percent was attributable to non-occupational factors. (Petition for Hearing ¶ 3; response to petition ¶ 2.) Accordingly, during a period of temporary total disability MMIA paid only fifty (50%) percent of the temporary total disability rate. (Petition for Hearing¶ 3; response to petition ¶ 2.) The benefits were based on Gomez' 1989 wages rather than his 1992 wages. (Petition for Hearing ¶ 4.[1]) The parties agree that Gomez is no longer totally disabled, having returned to work in a different job. (Petition for Hearing ¶ 5; response to petition ¶ 9.)

         Gomez asks this Court to make several determinations. First, he requests it to find that his condition is entirely attributable to his occupational exposure. In the alternative, he asserts his condition is seventy-five (75%) percent due to occupational exposure. He asks that his temporary total disability benefits be increased accordingly. Second, he asks that the Court determine that his benefits should be based on his 1992 wages. Third, he requests a $10, 000 award under section 39-72-405, MCA.[2] Finally, he requests attorney fees and a penalty. The issue presented by the motion to dismiss is whether the Court has jurisdiction over any of these matters.

         Discussion

         Apportionment between occupational and non-occupational factors is permitted under the Occupational Disease Act (ODA). Section 39-72-706(1), MCA (1991), provides:

Aggravation. (1) If an occupational disease is aggravated by any other disease or infirmity not itself compensable or if disability or death from any other cause not itself compen-sable is aggravated, prolonged, accelerated, or in any way contributed to by an occupational disease, the compensation payable under this chapter must be reduced and limited to such proportion only of the compensation that would be payable if the occupational disease were the sole cause of the disability or death as such occupational disease as a causative factor bears to all the causes of such disability or death.

         MMIA made a unilateral determination that claimant's condition is fifty (50%) percent due to non-occupational factors.

         Citing this Court's decision in Wunderlich v. Lumbermen's Mutual Casualty Company, WCC Nos. 9310-6907 and 9310-6915 (June 28, 1994)(on appeal), MMIA argues that Gomez' sole remedy respecting its apportionment determination is to request a hearing before the DLI. In Wunderlich the Court stated that "[t]he Department of Labor and Industry, not the Workers' Compensation Court, has original jurisdiction to resolve cases of disputed liability under the Occupational Disease Act . . . ." (Wunderlich Opinion at 9.) That statement, however, was in the context of a claim the insurer had denied in its entirety. The ...


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