Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Epperson v. Willis Corroon Administrative Service Corp.

Court of Workers Compensation of Montana

August 29, 1996

MARGARET EPPERSON Appellant
v.
WILLIS CORROON ADMINISTRATIVE SERVICE CORPORATION Respondent.

          Submitted: August 19, 1996

          ORDER ON APPEAL

          Mike McCarter Judge.

         Summary: Appellant sought occupational disease benefits and was referred to a medical examination, which found her not to suffer from an OD. The Department of Labor duly issued an order of determination denying her claim. Although the order stated she must request a hearing within 20 days, she did not. She later requested a hearing, which was dismissed by the DOL as untimely. She appealed to the Workers' Compensation Court.

         Held: While section 39-72-612(1), MCA, requires appeal within 20 days, the 20-day period does not commence to run until expiration of the time for administrative review of the determination, which is ninety days under ARM 24.29.215(1). Until that period has run, the order is not final. Claimant's appeal was filed within ninety days of the initial order and is hence timely. (Note: WCC affirmed in Epperson v. Willis Corroon Administrative Services Corporation, 281 Mont. 373, 934 P.2d 1034 (1997) (No. 96-610).)

         Topics:

Appeals (To Workers' Compensation Court): Timeliness. Occupational disease claimant's appeal of "order of determination" denying her occupational disease claim was timely, even though not filed within 20 days after "order of determination." While section 39-72-612(1), MCA, requires appeal within 20 days, the 20-day period does not commence to run until expiration of the time for administrative review of the determination, which is ninety days under ARM 24.29.215(1). Claimant's appeal was filed within ninety days of the initial order and is hence timely. (Note: WCC affirmed in Epperson v. Willis Corroon Administrative Services Corporation, 281 Mont. 373, 934 P.2d 1034 (1997) (No. 96-610).)

         This is an appeal from a Department of Labor and Industry (Department) decision dismissing the appellant's request for hearing in an occupational disease case.

         The relevant facts are straightforward. On September 26, 1995, the appellant, Margaret Epperson (claimant), submitted to a medical examination by Dr. J. Michael Sadaj to determine if she suffered from an occupational disease. Dr. Sadaj was designated by the Department to perform the examination and submitted a report of his findings to the Department. On November 1, 1995, the Department issued an Order Referring Copy of Medical Reports to Parties. The order indicated that based on Dr. Sadaj's report claimant's occupational disease claim "would be denied" but notified her of her right to a second examination. (Appellant's Brief Ex. C.)

         Claimant did not request a second examination and on November 27, 1995, the Employment Relations Division (ERD) issued an Order of Determination denying her claim. The order further notified claimant of a right to request a hearing within 20 days of the order, stating:

Pursuant to 39-72-612, MCA, the parties are hereby notified a party adversely affected by this Order of Determination has twenty (20) days from the date of this Order to request a hearing before the Department of Labor & Industry Legal Division.

(Appellant's Brief Ex. D.) Finally, the order stated that lacking a request for a hearing the order would become final.

         Claimant did not request a hearing within 20 days. However, thereafter on January 30, 1996, the claimant, through counsel, requested a hearing. The insurer moved to dismiss the request as untimely and on May 31, 1996, a Department hearing officer issued a Ruling on Insurer's Motion to Dismiss finding that the request for hearing was in fact untimely. He dismissed the case. This appeal followed.

         On appeal, the claimant argues that the dismissal of her request for a hearing was in violation of the applicable statutes and Department regulations; was made upon unlawful procedures; was affected by an error of law; and was clearly erroneous in view of the reliable, probative and substantial evidence on the whole record. (Appeal from Ruling on Insurer's Motion to Dismiss.) While the final ground appears to raise factual issues, the claimant's arguments are legal ones questioning the legal correctness of the Department's decision. The decision will therefore be reviewed to determine if it is correct. Steer, Inc., v. Dep't of Revenue of the State of Mont., 245 Mont. 470, 803 P.2d 601 (1990).

         Discussion

         The time for requesting a Departmental hearing in an occupation disease case is prescribed by section 39-72-612, MCA, (1989) which provides:

39-72-612. Hearing and appeal to workers' compensation judge. (1) Within 20 days after the department has issued its order of determination as to whether the claimant is entitled to benefits under this chapter, a party may request a hearing. In order to perfect an appeal to the workers' compensation judge, the appealing party shall request a hearing before the department. The department shall grant a hearing, and the department's final determination may not be issued until after the hearing.
(2) Appeals from a final determination of the department must be made to the workers' compensation judge within 30 days after the department has issued its final determination. The judge, after a hearing held pursuant to 39-71-2903 and 39-71-2904, shall make a final determination concerning the claimant's claim. The judge may overrule the department only on the basis that the department's determination is:
(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the agency;
(c) made upon unlawful procedure;
(d) affected by other error of law;
(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. [Emphasis added.]

         The section specifically fixes the time in which to request a hearing. An untimely request must be dismissed. Cf. First Security Bank of Havre v. Harmon, 255 Mont. 168, 172, 841 P.2d 521, 523 (1992) (Time limits fixed for appeal are mandatory and jurisdictional and failure to perfect an appeal within the time allowed requires dismissal of the appeal).

         Claimant, however, seeks to avoid the harsh consequence of the statute by arguing that a regulation of the Department provides a separate, longer period for making her request. She relies on ARM 24.29.215(2) (1987), which provides:

(2) A party seeking a contested case hearing under ARM 24.29.207 must make a written request to the division [Department[1] for a contested case hearing within thirty days of notice of the results of an administrative review or within ninety days of notice of adverse action. [Emphasis added.]

         She requests that the longer, 90-day appeal period mentioned by the rule should be applied.

         Initially, a reading of the Department's regulation supports claimant's interpretation of ARM 24.29.215(2) as applying to occupational disease cases, as well as to workers' compensation cases. ARM 24.29.207, to which the former rule refers, expressly extends to occupational disease hearings. ARM 24.29.207(4) (1983) provides:

(4) A contested case under Title 39, chapters 72 or 73 . . . is administered by the workers' compensation division in accordance with 24.29.207(6). [Emphasis added.]

         The ODA, of course, is found in chapter 72 of Title 39. ARM 24.29.207(6), mentioned in subsection (4), merely provides that the Attorney General's model procedural rules regarding contested case hearings shall apply to Department proceedings. Thus, claimant has properly read ARM 24.29.215(2) (1987) as affording her 90 days in which to file her request for hearing.

         The Department, however, cannot adopt regulations contrary to or conflicting with an express statute, Bick v. Montana Department of Justice, 224 Mont. 455, 457, 730 P.2d 418, 420 (1986), and any such regulation is void, Michels v. Department of Social and Rehabilitation Services, 187 Mont. 173, 177, 609 P.2d 271, 273 (1980). Thus, the 20-day limit prescribed by section 39-72-612, MCA, is applicable in this case. The Department's longer, 90-day rule, as it applies to an occupational disease determination, is void.

         The claimant does not argue, or provide the Court with facts supporting an argument that the Department is estopped by its rule from relying on the statutes. Estoppel requires proof of reliance on the rule, and none is shown. Mellem v. Kalispell Laundry, 237 Mont. 439, 774 P.2d 390 (1989).

         She does contend, however, that the Department and the insurer should be estopped from imposing the statutory limitation because the Department failed to furnish her with the Department's letter to Dr. Sadaj. A copy of the letter is set forth in the appendix and asks the doctor to first determine if claimant is suffering from an occupational disease. If he so determined, then he was to determine whether the disease was proximately caused by her employment. If both of those questions were answered in the affirmative, then the letter asked a number of additional questions. Claimant asserts that the doctor failed to comply with the letter and that because the Department failed to furnish her a copy of the letter she was unaware of that fact and could not have known whether she had grounds to request a hearing. Hence, she argues, the Department deprived her of essential information and should be estopped.

         Estoppel requires proof of six elements, as follows:

"1. There must be conduct __ acts, language, or silence -- amounting to a representation or a concealment of material facts. 2. These facts must be known to the party estopped at the time of his said conduct, or at least the circumstances must be such that knowledge of them is necessarily imputed to him. 3. The truth concerning these facts must be unknown to the other party claiming the benefit of the estoppel, at the time when it was acted upon by him. 4. The conduct must be done with the intention, or at least with the expectation, that it will be acted upon by the other party, or under such circumstances that it is both natural and probable that it will be so acted upon . . . . 5. The conduct must be relied ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.