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Hart v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

August 26, 1996

KEITH HART Appellant
v.
STATE COMPENSATION INSURANCE FUND Respondent.

          Submitted: August 5, 1996

          ORDER DISMISSING APPEAL

          Mike McCarter Judge.

         Summary: Claimant appealed from order of DOL denying his request for an extension of time in which to file a workers' compensation claim. Respondent moved to dismiss on ground that jurisdiction still lies with DOL, not with WCC.

         Held: Respondent's motion to dismiss is granted. Claimant's appeal is premature because the DOL order was not a final and appealable order. The Montana Administrative Procedures Act (MAPA) requires that claimant be afforded a contested case hearing within the DOL. Section 39-71-204, MCA (1995), of the WCA states the DOL has continuing jurisdiction over its orders before they become final.

         Topics:

Administrative Procedure: Failure to Exhaust Administrative Remedies. In case alleging 1995 injury, claimant failed to exhaust contested case procedure before DOL where he filed appeal from DOL's denial of his request for an extension of time, but had not requested a hearing on that denial within the DOL.

         The present case is an appeal from an order of the Department of Labor and Industry denying the appellant's/claimant's request for an extension of time in which to file his workers' compensation claim. The respondent, State Compensation Insurance Fund (State Fund), moves to dismiss on the ground that jurisdiction over appellant's request still lies with the Department of Labor and Industry, not with the Court.

         The salient facts, as alleged by claimant and assumed to be true for purposes of the appeal, Farris v. Hutchinson, 254 Mont. 334, 336, 838 P.2d 374, 376 (1992), are set forth in claimant's Appeal from 6/21/96 MDOLI-ERD Order Denying Waiver of Claim Time Period ("Appeal") and Attached Exhibits, and a June 21, 1996 Order Denying Waiver of Claim Time Period. They are as follows:

1. Claimant suffered an industrial injury on October 15, 1992, when he slipped at work. He was treated and diagnosed as suffering from low-back strain.
2. Claimant submitted a written incident report to his employer (Appeal Ex. B) but did not file a written workers' compensation claim within one year following the injury.
3. On July 11, 1995, which is less than three years after the accident, the claimant's employer filed an Employer's First Report. In relevant part, the report related:
Employee describes lower back pain of gradual onset, for approximately one month prior to pain changing, and running down (L) leg and into (L) foot, causing him to seek medical advice. Keith state[s] no specific incident contributing to this current onset of pain. He feels that it is part of an old injury in 10/92, when he slipped on a pool of urine on [the] floor.
(Appeal Ex. A.) Claimant, as well as the employer, signed the claim. (Id.) The matter was thereafter treated as an occupational disease. (Appeal at 3.)
4. By July 1995 claimant was no longer able to work on account of low-back pain and resumed medical treatment.
5. In April 1996, more than three years after the accident, claimant submitted a written claim for compensation. The claim was denied by respondent, State Compensation Insurance Fund, as untimely. (Appeal Ex. H.)
6. Pursuant to section 39-71-601, MCA, claimant thereafter petitioned the Department of Labor and Industry (Department) for a waiver of the one-year filing requirement.
7. On June 21, 1996, the Department issued an Order Denying Waiver of Claim Time Period. The Department mailed the order to the parties but did not set up a file on the matter. (July 17, 1996 letter of Gary Holt to Judge McCarter.) However, a copy of the order has been provided to the Court by the State Fund.
8. The Department's order was signed by Carol Gleed, a workers' compensation benefits examiner for the Workers' Compensation Claims Assistance Bureau, which is a bureau within the Employment Relations Division of the Department.
9. The order denied the requested extension on the ground that the Department lacked jurisdiction to extend the time ...

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