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McNeesep v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

October 3, 1995

JERRY G. McNEESE Petitioner
v.
STATE COMPENSATION INSURANCE FUND/ DEPARTMENT OF LABOR AND INDUSTRY Respondent/Insurer for ASSOCIATED GLASS, INCORPORATED Employer.

          ORDER DENYING MOTION TO DISMISS, STAYING PROCEEDINGS, AND REQUIRING FURTHER ACTION BY THE PARTIES

          Mike McCarter JUDGE

         Summary: State Fund moved to dismiss petition for (1) failing to state claim upon which relief can be granted and (2) failure to complete mediation.

         Held: Where the petition seeks a determination that claimant suffered a compensable injury and is entitled to benefits, it states a claim on which relief can be granted in this Court. However, where the record indicates that no written mediation recommendation ever issued because claimant agreed to see a physician, but has since refused to see the physician, the mediator must now issue a recommendation. While the Court is currently without jurisdiction to act in the case, the matter will be held in abeyance pending issuance of the mediation report.

         Topics:

Pleading: Statement of a Claim. Where the petition seeks a determination that claimant suffered a compensable injury and is entitled to benefits, it states a claim on which relief can be granted in this Court.
Mediation: General. Where the record indicates that no written mediation recommendation ever issued because claimant agreed to see a physician, but has since refused to see the physician, the mediator must now issue a recommendation and the Workers' Compensation Court lacks jurisdiction until the mediation report issues.
Jurisdiction: Mediation. Where the record indicates that no written mediation recommendation ever issued because claimant agreed to see a physician, but has since refused to see the physician, the mediator must now issue a recommendation and the Workers' Compensation Court lacks jurisdiction until the mediation report issues.

         The petitioner, Jerry G. McNeese (claimant), claims that in December 1989 he was injured in an industrial accident. However, he failed to file a claim for compensation within the one year prescribed by section 39-71-601(1), MCA (1989). He did not submit a written claim until April 9, 1992, nearly two and a half years later.

         In light of the lateness of his claim, the claimant applied to the Department of Labor and Industry for a waiver of the statute of limitations. The Department denied a waiver and claimant appealed to this Court, which held that he was entitled to a waiver of the one-year statute of limitation. Jerry G. McNeese v. State Compensation Ins. Fund, WCC No. 9407-7084 (May 5, 1995). We remanded the matter to the Department of Labor and Industry and directed it to grant claimant a waiver under section 39-71-601(2), MCA (1989).

         This Court's March 5, 1995 decision did not find that claimant suffered a compensable injury or require the State Fund to accept his claim. Those issues were not presented. The decision merely removed the statutory bar to claimant's prosecuting his claim. Claimant's current petition advises the Court that his workers' compensation claim has not been accepted and seeks a determination that he is entitled to workers' compensation benefits.

         The State Fund has moved to dismiss the current petition on two grounds. First, it argues that the mediation requirements have not been met. Second, it asserts that the petition fails to state a claim upon which relief can be granted. The arguments will be considered in reverse order.

         The petition seeks a determination that claimant suffered a compensable industrial accident and is entitled to benefits under the Workers' Compensation Act. Therefore, it plainly states a claim upon which relief can be granted.

         The mediation issue is more troublesome. According to the Motion to Dismiss, the State Fund is paying temporary total and medical benefits under a reservation of rights pending its determination of whether claimant's condition should be treated as resulting from an industrial injury or an occupational disease. The motion further states that while mediation took place on August 23, 1995, no written recommendation was ever issued because claimant agreed to an examination by Dr. Enrico Arguelles for the purpose of determining whether his condition is the result of an industrial accident or an occupational disease. (According to the motion, Dr. Arguelles is claimant's treating physician.) Claimant has since refused to see Dr. Arguelles.

         In light of his apparent repudiation of any agreement to see Dr. Arguelles, claimant is entitled to the mediator's written recommendation. The mediator should be notified that his recommendation is now required, thus triggering the 10-day period for issuance of that recommendation. ARM 24.28.108 and § 39-71-2411(5), MCA. Issuance of the written recommendation, or the failure to timely do so, will trigger the 45-day period in which either party may reject the recommendation. ...


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