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Bowers v. Department of Labor & Industry

Court of Workers Compensation of Montana

April 29, 1997

JEANNETTE BOWERS, as beneficiary and on behalf of MEADE BOWERS, deceased Appellant
v.
DEPARTMENT OF LABOR & INDUSTRY and STATE COMPENSATION INSURANCE FUND Respondents.

          Submitted: January 21, 1997

          ORDERON APPEAL

          Mike McCarter Judge

         Summary: Widow alleged work-place exposure to chemicals caused or hastened her husband's death. After her claim was denied by the State Compensation Insurance Fund, it was brought to the attention of the Department of Labor & Industry, which declined to designate two physicians to conduct an evaluation of the worker's condition pursuant to section 39-72-605, MCA (1993), unless specifically requested by claimant. Under protest, claimant requested the evaluation. Following the evaluation and report, the bill from at least one physician was submitted to the claimant. She declined to pay and requested a hearing regarding responsibility for the charges. A Department hearing officer found that claimant, as the requesting party, was responsible for the charges.

         Held: Under the specific language of section 39-72-608, MCA (1993), "when the occupational disease causes death, the expense of any examinations and reports, as provided in 39-72-605, must be borne by the party requesting the examination." Because causation has not yet been determined in this case, the charges may not yet be assessed against claimant and must initially be borne by the Department. Should it ultimately be determined that the worker in fact died on account of an occupational disease, claimant/appellant will be liable for the bills since she requested the evaluation.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-72-605, MCA (1993). Widow seeking occupational disease benefits disputed Department's determination she must pay for medical evaluation of question whether chemical exposure contributed to death of her husband. Under the specific language of section 39-72-608, MCA (1993), "when the occupational disease causes death, the expense of any examinations and reports, as provided in 39-72-605, must be borne by the party requesting the examination." Because causation has not yet been determined in this case, the charges may not yet be assessed against claimant and must initially be borne by the Department. Should it ultimately be determined that the worker in fact died on account of an occupational disease, claimant/appellant will be liable for the bills since she requested the evaluation.
Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-72-608, MCA (1993). Widow seeking occupational disease benefits disputed Department's determination she must pay for medical evaluation of question whether chemical exposure contributed to death of her husband. Under the specific language of section 39-72-608, MCA (1993), "when the occupational disease causes death, the expense of any examinations and reports, as provided in 39-72-605, must be borne by the party requesting the examination." Because causation has not yet been determined in this case, the charges may not yet be assessed against claimant and must initially be borne by the Department. Should it ultimately be determined that the worker in fact died on account of an occupational disease, claimant/appellant will be liable for the bills since she requested the evaluation.

         This is an appeal from a finding by the Department of Labor and Industry (Department) that appellant, Jeannette Bowers, must bear the expense of an occupational evaluation by a medical panel designated by the Department.

         Factual and Procedural Background

         The appellant, Jeannette Bowers (Jeannette), is the widow and beneficiary of Meade Bowers (Meade), who died April 24, 1994. She alleges that Meade suffered from an occupational disease caused by work-place exposure to chemicals and that his disease caused or hastened his death. After Meade's death she filed a claim. The claim was presented to and denied by the State Compensation Insurance Fund (State Fund).

         Jeannette's claim was brought to the attention of the Department of Labor and Industry, which declined to designate two physicians to conduct an evaluation of Meade's condition pursuant to section 39-72-605, MCA, unless specifically requested to do so by Jeannette. Under protest, Jeannette requested the evaluation. The Department then appointed two physicians to study the matter. Following their evaluation and report, and at the direction of the Department, the bill from at least one of the panel physicians was submitted to Jeannette for payment. She declined to pay and requested a hearing before the Department for the purpose of determining who is responsible for the cost of the evaluations.

         A hearing was held before a hearing officer of the Department on February 28, 1996. (Tr. at 2.) On August 7, 1996, the hearing officer issued his Findings of Fact; Conclusions of Law; and Final Order (Findings), determining that Jeannette, "as the requesting party, is responsible for the payment of medical examinations/record reviews in this matter." (Findings at 9.) The hearing officer held that "the language of 608 is clear relative to payment for examinations and reports provided for in 605 - the party requesting the examination must bear the expense." (Id. at 8) He also noted that the Department has an existing policy which provides that any party filing a claim under section 39-72-605, MCA, must also file a written request for the examination. (Id. at 9.) He found that Jeannette filed a claim and, "under protest, submitted a written request for the examination." (Id.)

         On September 5, 1996, Jeannette appealed the hearing officer's Findings to this Court. (Court File, Notice of Appeal and Request for Oral Argument.) She alleged that, contrary to the hearing officer's determination, the Department is responsible for the costs of the evaluation. After reviewing the initial briefs in the matter, another possibility occurred to the Court, namely that the insurer might be responsible for payment. Therefore, in an Order dated December 9, 1996, this Court joined the State Compensation Insurance Fund (State Fund) as a necessary and indispensable party. (Order Joining State Compensation Insurance Fund as a Necessary Party.) The State Fund participated in further briefing, which is now complete.

         Jeannette initially requested oral argument. However, the Court has contacted counsel for Jeannette and has been advised that oral argument is unnecessary. The matter is ...


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