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Chippewa v. North West Phone Systems

Court of Workers Compensation of Montana

November 2, 1995

DARRELL J. CHIPPEWA Petitioner
v.
NORTH WEST PHONE SYSTEMS Employer and MONTANA STATE COMPENSATION INSURANCE FUND Insurer/Respondent and CHILD SUPPORT ENFORCEMENT DIVISION, Department of Family and Health Services Respondent.

          Submitted: October 13, 1995

          ORDER DISMISSING PETITION

          Mike McCarter JUDGE

         Summary: Child Support Enforcement Division of the Department of Family and Health Services obtained writs of attachment garnishing claimant's biweekly temporary total disability benefits for payment of his child support obligation. Claimant filed petition in the Workers' Compensation Court challenging the lawfulness of the garnishment. The insurer and the CSED argued this Court lacks jurisdiction over the petition.

         Held: Workers' Compensation Court lacked subject matter jurisdiction over claimant's objection to garnishment of his biweekly temporary total disability benefits by Child Support Enforcement Division of the Department of Family and Health Services. Not only were the writs of execution on claimant's benefits were issued by the Montana District Court, not by the WCC, and but the matter of garnishment is not a dispute "concerning benefits" over which the WCC has jurisdiction.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-2905, MCA (1985). Workers' Compensation Court lacked subject matter jurisdiction over claimant's objection to garnishment of his biweekly temporary total disability benefits by Child Support Enforcement Division of the Department of Family and Health Services. Not only were the writs of execution on claimant's benefits issued by the Montana District Court, not by the WCC, but the matter of garnishment is not a dispute "concerning benefits" over which the WCC has jurisdiction.
Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-2401 (1985). Workers' Compensation Court lacked subject matter jurisdiction over claimant's objection to garnishment of his biweekly temporary total disability benefits by Child Support Enforcement Division of the Department of Family and Health Services. Not only were the writs of execution on claimant's benefits issued by the Montana District Court, not by the WCC, but the matter of garnishment is not a dispute "concerning benefits" over which the WCC has jurisdiction.
Benefits: Garnishment. Workers' Compensation Court lacked subject matter jurisdiction over claimant's objection to garnishment of his biweekly temporary total disability benefits by Child Support Enforcement Division of the Department of Family and Health Services. Not only were the writs of execution on claimant's benefits issued by the Montana District Court, not by the WCC, and the matter of garnishment is not a dispute "concerning benefits" over which the WCC has jurisdiction.
Jurisdiction: Subject Matter. Workers' Compensation Court lacked subject matter jurisdiction over claimant's objection to garnishment of his biweekly temporary total disability benefits by Child Support Enforcement Division of the Department of Family and Health Services. Not only were the writs of execution on claimant's benefits issued by the Montana District Court, not by the WCC, but the matter of garnishment is not a dispute "concerning benefits" over which the WCC has jurisdiction.

         This petition, commenced by Darrell J. Chippewa (Chippewa), attacks the Child Support Enforcement Division's garnishment of his workers' compensation benefits. His Amended Petition for Hearing, filed July 25, 1995, alleges that he is receiving workers' compensation benefits on account of an industrial injury he suffered on March 21, 1987, while working for North West Phone Systems. The State Compensation Insurance Fund has been paying benefits. However, his benefits have been garnished by the Child Support Enforcement Division (CSED). According to the Amended Petition for Hearing:

3. Respondent Child Support Enforcement Division ("CSCD") [sic] has obtained a Writ of Execution from a district court of the State of Montana and has levied upon Claimant's biweekly workers' compensation benefits in the past and continues to levy on his accruing biweekly temporary total disability benefits pursuant to said Writ of Execution. A dispute exists between the parties with respect to attaching and levying upon Claimant's workers' compensation benefits pursuant to a child support order. Claimant contends that the law in effect on the date of his injury prohibits such levy, § 39-71-743, MCA (1985). Claimant has demanded that said levies cease, but both the Insurer State Compensation Insurance Fund ("SCIF") and CSCD [sic] have refused the demand.

         Chippewa seeks a determination that the garnishment is illegal under the Workers' Compensation Act. He also seeks assessment of a penalty, attorney fees and costs against the State Fund because it has honored the writ of execution garnishing his benefits.

         Both the State Fund and the CSED move to dismiss the petition for lack of subject matter jurisdiction. They argue Chippewa's benefits are not at issue and that the Workers' Compensation Court is therefore without jurisdiction to determine the legality of the garnishment. They contend that the court which issued the writ of execution must decide the matter. This Court agrees.

         Under Rule 12(h)(3), Mont.R.Civ.P., "Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Rule 12(b)(1) permits a lack of subject matter defense to be raised in a motion to dismiss. While the Workers' Compensation Court has not adopted the Montana Rules of Civil Procedure, it has looked to the Rules of Civil Procedure for guidance where its own rules do not cover the procedural issue in question. That practice has been approved by the Supreme Court, Murer v. State Compensation Mut. Ins. Fund,257 Mont. 434, 436, 849 P.2d 1036, ...


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