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Partin v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

January 13, 1997

TIMOTHY PARTIN Appellant
v.
STATE COMPENSATION INSURANCE FUND Respondent.

          Submitted: January 13, 1997

          ORDER DENYING MOTION TO PRESENT ADDITIONAL EVIDENCE

          Mike McCarter JUDGE

         Summary: Appellant seeking reversal of DOL hearing officer's decision he should not be granted waiver of the one-year filing requirement of section 39-71-601(1), MCA, filed motion in WCC seeking leave to present testimony of two witnesses not presented below. One witness was excluded by the hearing officer because not timely disclosed. The other witness was simply not offered below.

         Held: Under section 2-4-703, MCA, to prevail on his motion, claimant must demonstrate two things: (1) that the proffered testimony is "material"; and (2) that "there were good reasons for his failure to present it in the proceeding before the agency. He has not shown "good reasons" for failing to present the evidence earlier. The proposed witnesses were co-workers, whose identities were known to him before trial. As to the witness not timely disclosed, appellant cannot use this motion procedure to circumvent the hearing officer's decision to exclude. That issue is part of the appeal and should be handled in that fashion. As to the other witness, claimant presents no justification for failing to call him below.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 2-4-703, MCA. Under section 2-4-703, MCA, to prevail on a motion to present new evidence in the WCC on appeal of a DOL hearing officer decision, claimant must demonstrate two things: (1) that the proffered testimony is "material"; and (2) that "there were good reasons for his failure to present it in the proceeding before the agency. He has not shown "good reasons" where the proposed witnesses were co-workers, whose identities were known to him before trial, and no excuse for failing to present the evidence earlier was offered. As to the witness not timely disclosed, appellant cannot use this motion procedure to circumvent the hearing officer's decision to exclude. That issue is part of the appeal and should be handled in that fashion.
Judicial Review: Additional Evidence. Under section 2-4-703, MCA, to prevail on a motion to present new evidence in the WCC on appeal of a DOL hearing officer decision, claimant must demonstrate two things: (1) that the proffered testimony is "material"; and (2) that "there were good reasons for his failure to present it in the proceeding before the agency. He has not shown "good reasons" where the proposed witnesses were co-workers, whose identities were known to him before trial, and no excuse for failing to present the evidence earlier was offered. As to the witness not timely disclosed, appellant cannot use this motion procedure to circumvent the hearing officer's decision to exclude. That issue is part of the appeal and should be handled in that fashion.

         This is an appeal from a decision of the Department of Labor and Industry (Department). Appellant (claimant) moves for leave to present additional evidence.

         Factual Background

         The claimant seeks a waiver of the one-year filing requirement prescribed by section 39-71-601(1), MCA. He submitted his request for a waiver to the Department pursuant to section 39-71-601(2)(c), MCA, which provides:

         (2) The department may waive the time requirement up to an additional 24 months upon a reasonable showing by the claimant of:

(a) lack of knowledge of disability;
(b) latent injury; ...

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