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Martinez v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

March 5, 1997

ROSA M. MARTINEZ Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for GEORGE HENRY'S RESTAURANT Employer.

          Submitted: February 4, 1997

          DECISION AND JUDGMENT

          MIKE McCARTER JUDGE.

         Summary: Claimant and insurer stipulated to uncontested facts and presented issues regarding payment of outstanding medical bills, attorneys fees and penalty. In colloquy at the commencement of trial, insurer's attorney conceded insurer had acted unreasonably during period after its response to mediator's recommendation. Insurer maintained it should pay penalty only upon benefits accruing after that point.

         Held: Insurer is liable for penalty on all accrued, unpaid benefits based on unreasonable delay. Where insurer has conceded it delayed unreasonably after a particular point, the delay impacted all benefits accrued to that date, not merely benefits accruing after that date. Indeed, the delay is more unreasonable as to earlier accrued benefits as they were past due for a longer period. Attorneys fees awarded as well. Court retained continuing jurisdiction over medical bills disputes, but does not address those issues at present based on insurer's representation as to how it would handle that matter once records were received.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: Section 39-71-611, MCA (1995). Insurer is liable for penalty on all accrued, unpaid benefits based on unreasonable delay. Where insurer has conceded it delayed unreasonably after a particular point, the delay impacted all benefits accrued to that date, not merely benefits accruing after that date. Indeed, the delay is more unreasonable as to earlier accrued benefits as they were past due for a longer period. Attorneys fees awarded as well.
Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: Section 39-71-2907, MCA (1995). Insurer is liable for penalty on all accrued, unpaid benefits based on unreasonable delay. Where insurer has conceded it delayed unreasonably after a particular point, the delay impacted all benefits accrued to that date, not merely benefits accruing after that date. Indeed, the delay is more unreasonable as to earlier accrued benefits as they were past due for a longer period. Attorneys fees awarded as well.
Attorneys Fees: Cases Awarded. Insurer is liable for penalty on all accrued, unpaid benefits based on unreasonable delay. Where insurer has conceded it delayed unreasonably after a particular point, the delay impacted all benefits accrued to that date, not merely benefits accruing after that date. Indeed, the delay is more unreasonable as to earlier accrued benefits as they were past due for a longer period. Attorneys fees awarded as well.
Attorney Fees: Unreasonable Denial or Delay of Payment. Insurer is liable for penalty on all accrued, unpaid benefits based on unreasonable delay. Where insurer has conceded it delayed unreasonably after a particular point, the delay impacted all benefits accrued to that date, not merely benefits accruing after that date. Indeed, the delay is more unreasonable as to earlier accrued benefits as they were past due for a longer period. Attorneys fees awarded as well.
Penalties: Insurers. Insurer is liable for penalty on all accrued, unpaid benefits based on unreasonable delay. Where insurer has conceded it delayed unreasonably after a particular point, the delay impacted all benefits accrued to that date, not merely benefits accruing after that date. Indeed, the delay is more unreasonable as to earlier accrued benefits as they were past due for a longer period. Attorneys fees awarded as well.

         This matter came to trial on February 4, 1997, in Billings Montana. Petitioner, Rosa M. Martinez (claimant), was present and represented by Mr. Donald D. Sommerfeld. Respondent, State Compensation Insurance Fund (State Fund), was represented by Mr. Daniel J. Whyte.

         Pretrial Order: At the commencement of trial the parties presented the Court with a Revised Pretrial Order. The revised Order was signed by both counsel and approved by the Court. It sets out the following agreed facts, stipulation, and issues:

C. UNCONTESTED FACTS
1. The Claimant suffered a compensable injury arising out of and in the course of her employment on November 27, 1995 while working for George Henry's Restaurant in Billings, Yellowstone County, Montana. As Claimant was in the process of taking her employer's mail to the U.S. Mail drop box (collection box) at the Buttrey's store near the intersection of 27th Street North and 6th Avenue North, she was struck by a car driven by Julie Sherod Brant. Claimant suffered a brain injury, an injury to her left arm, and an injury to her left leg.
2. On November 27, 1995, George Henry's Restaurant was enrolled under Compensation Plan No. III of the Workers' Compensation Act and its insurer was the State Compensation Mutual Insurance Fund (hereinafter referred to as State Fund or Respondent).
3. State Fund initially denied liability and did not pay benefits.
4. On August 27, 1996, a mediation conference was held and, on September 10, 1996, the worker's [sic] compensation mediator filed a Mediation Report and Recommendation. Claimant accepted the ...

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