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Liberty Mutual Fire Insurance Co. v. Blancher

Court of Workers Compensation of Montana

February 9, 1996

LIBERTY MUTUAL FIRE INSURANCE COMPANY Appellant/Insurer
v.
ROSEMARIE BLANCHER Respondent/Claimant.

          Submitted: January 29, 1996

          ORDER DISMISSING APPEAL FOR LACK OF JURISDICTION

          MIKE MCCARTER JUDGE.

         Summary: Insurer appealed from DLI order reinstating biweekly compensation benefits pending a hearing, arguing the DLI had no authority to order continuation of benefits without setting a hearing as required by section 39-071-610, MCA (1995).

         Held: Sua sponte, the WCC notes it has no jurisdiction in this matter where mediation has not taken place. Subject matter jurisdiction cannot be waived nor conferred by consent of a party where there is no basis for jurisdiction under the law.

         Topics:

Mediation. Sua sponte, the WCC notes it has no jurisdiction over interim benefits matter under 1995 version of section 39-71-610, MCA, where mediation has not taken place. Subject matter jurisdiction cannot be waived nor conferred by consent of a party where there is no basis for jurisdiction under the law.
Jurisdiction: Mediation. Sua sponte, the WCC notes it has no jurisdiction over interim benefits matter under 1995 version of section 39-71-610, MCA, where mediation has not taken place. Subject matter jurisdiction cannot be waived nor conferred by consent of a party where there is no basis for jurisdiction under the law.

         This is an appeal from a Department of Labor and Industry Order Reinstating Benefits Pending a Hearing. The order directed Liberty Mutual Fire Insurance Company to reinstate Rosemarie Blancher's temporary total disability benefits for an additional 49 days, or until hearing, whichever occurs first. Liberty is the appellant. It asserts that the Order is contrary to statute because no hearing has been set by either the Department or the Court.

         Facts

         Since this matter comes to the Court on appeal, the Court ordered the Department to transfer its record of the case to the Court. On November 29, 1995, Christine L. Noland of the Department's Hearings Unit informed the Court that they had no record of the claim and that "this appeal by- passed us completely."

         The parties thereafter filed their briefs. The Appellant's Brief contains a statement of facts. In her brief, Blancher "agrees that this recitation is an adequate and accurate description of the facts underlying the dispute." The agreed facts are as follows:

1. Blancher was injured in an industrial accident on July 23, 1995.
2. Liberty accepted liability and thereafter paid medical and compensation benefits.
3. On October 27, 1995, Liberty gave Blancher 14 days notice it was terminating Blancher's temporary total disability benefits. (From this fact, the Court necessarily infers that Blancher was receiving temporary ...

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