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Bouldin v. Liberty Northwest Insurance Corp.

Court of Workers Compensation of Montana

October 8, 1996

THEDA BEA BOULDIN Petitioner
v.
LIBERTY NORTHWEST INSURANCE CORPORATION Respondent/Insurer for BIG SKY CARVERS Employer.

          Submitted Date: September 3, 1996.

          PARTIAL SUMMARY JUDGMENT AND DECISION

          Mike McCarter Judge.

         Summary: Insurer accepted occupational disease claim filed by 25-year old woman whose job involved painting detail on decoy ducks. The initial diagnosis involved "fibromyositis with secondary headaches," which her physician believed was "aggravated by her work." Issues addressed in partial summary judgment involved whether the insurer's initial acceptance of the claim barred it from later asserting fibromyalgia condition was not work related and whether WCC had original jurisdiction to adjudicate claim for occupational disease.

         Held: Although neither party questioned the WCC's jurisdiction to decide the case, jurisdiction is an issue which may be raised at any time and may be raised sue sponte. When liability for an alleged occupational disease is disputed under the 1995 version of the Occupational Disease Act (ODA), the procedures set forth at section 39-72-602, MCA (1995), are mandatory. These procedures include examination by a panel of physicians appointed by the Department of Labor, preparation of a report, issuance of an order by the DOL, hearing procedures in the DOL, and appeal to the WCC. Because this is a denied liability case, the DOL, not the WCC, has original jurisdiction to conduct a de novo hearing into whether claimant has an occupational disease. However, the WCC has jurisdiction to determine whether the insurer's initial acceptance of the claim bars subsequent denial. Where the insurer concedes claimant's present condition is the same condition for which she filed the initial claim, the insurer is barred from later denial.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-72-602, MCA (1995). Although neither party questioned the WCC's jurisdiction to decide the case, jurisdiction is an issue which may be raised at any time and may be raised sue sponte. When liability for an alleged occupational disease is disputed under the 1995 version of the Occupational Disease Act (ODA), the procedures set forth at section 39-72-602, MCA (1995), are mandatory. These procedures include examination by a panel of physicians appointed by the Department of Labor, preparation of a report, issuance of an order by the DOL, hearing procedures in the DOL, and appeal to the WCC. Because this is a denied liability case, the DOL, not the WCC, has original jurisdiction to conduct a de novo hearing into whether claimant has an occupational disease. However, the WCC has jurisdiction to determine whether the insurer's initial acceptance of the claim bars subsequent denial.
Claims: Acceptance. Under the 1995 version of the Occupational Disease Act, in a denied liability case, the DOL, not the WCC, has original jurisdiction to conduct a de novo hearing into whether claimant has an occupational disease. However, the WCC has jurisdiction to determine whether the insurer's initial acceptance of the claim bars subsequent denial. Where the insurer concedes claimant's present condition is the same condition for which she filed the initial claim, the insurer is barred from later denial.
Jurisdiction: Original Jurisdiction. Although neither party questioned the WCC's jurisdiction to decide the case, jurisdiction is an issue which may be raised at any time and may be raised sue sponte. When liability for an alleged occupational disease is disputed under the 1995 version of the Occupational Disease Act (ODA), the procedures set forth at section 39-72-602, MCA (1995), are mandatory. These procedures include examination by a panel of physicians appointed by the Department of Labor, preparation of a report, issuance of an order by the DOL, hearing procedures in the DOL, and appeal to the WCC. Because this is a denied liability case, the DOL, not the WCC, has original jurisdiction to conduct a de novo hearing into whether claimant has an occupational disease. However, the WCC has jurisdiction to determine whether the insurer's initial acceptance of the claim bars subsequent denial.

         The petitioner in this case, Theda Bea Bouldin (Theda), who appears pro sé, seeks occupational disease benefits on account of a fibromyalgia condition. Her case was scheduled for trial on Tuesday, September 3, 1996. However, after reviewing the Pretrial Order and the exhibits, the Court identified two significant issues of law which may be dispositive of the Petition for Hearing. Those issues, as phrased by the Court are:

1. Does the insurer's initial acceptance of Theda's occupational disease claim bar it from now asserting that her fibromyalgia is not work related?
2. If the insurer's initial acceptance of Theda's claim does not preclude it from litigating the relatedness of her fibromyalgia to her work, does the Workers' Compensation Court have original jurisdiction to adjudicate her claim that she suffers from an occupational disease?

         The second issue raised yet another jurisdictional issue:

3. If the Court lacks original jurisdiction to determine whether claimant suffers from an occupational disease, does it have original jurisdiction to determine whether the insurer is precluded from contesting her claim?

         Since answers to these questions could be dispositive, I vacated the trial setting and invited the parties to address the issues at a hearing. A hearing was held on September 3, 1996. At that time the Court received a legal memorandum from Liberty and heard oral argument. The matter was then deemed submitted for decision.

         Facts

         The facts relevant to the issues under consideration are set forth in the pretrial order and stipulated exhibits. They are undisputed.

         Theda is 25 years old. She worked at Big Sky Carvers (BSC) painting detail on duck decoys from June 1, 1992 until March 14, 1996. Her job required her to sit in a chair at a table eight hours per day, five days per week.

         On March 6, 1995, Theda filed a workers' compensation claim. A copy of the claim is in evidence as Exhibit 35. It describes what occurred, as follows:

         No accident. Employee was suffering from headaches & sought medical treatment 1/30/95. Diagnosis subsequently was "Fibromyositis Syndrome" - an inflamed muscle in her neck & upper back. Doctor suggests pain is due to constant neck flexion.

         At the time she submitted her claim, Theda was being treated by Dr. Leonard Ramsey. He examined Theda on February 2, 13 and 21, again on March 3, 1995, and thereafter. (Ex. 1 at 1-2.) His office notes for those dates indicate that she was suffering pain and tenderness in the muscles of both her neck (paracervical muscles) and upper back (trapezius muscle), along with headaches. (Id.) Dr. Ramsey's diagnosis was fibromyositis. That diagnosis was later recast as fibromyalgia. (March 23, 1995 office note of Dr. Ramsey, Ex. 1 at 5 and see May 30, 1995 note of Dr. Duane Mohr, Ex. 3.) Both terms describe chronic muscle pain, tenderness, and stiffness.[1]

         Liberty insured Theda's employer. On March 24, 1995, a claims adjuster for Liberty wrote to claimant accepting her claim under the Occupational Disease Act of ...


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