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Ward v. Plum Creek Manufacturing

Court of Workers Compensation of Montana

August 13, 1997

JEANNE WARD Petitioner
v.
PLUM CREEK MANUFACTURING Respondent/Insurer/Employer.

          Submitted: July 14, 1997

          ORDER DENYING RESPONDENT'S MOTION FOR SUMMARY RULING

          MIKE MCCARTER JUDGE.

         Summary: The insurer refused to advance claimant $10, 000 on permanent partial disability benefits. The insurer argued claimant failed to provide justification for the advance, contending this was required during mediation and, more generally, as justification for her request.

         Held: Where the insurer did not demand specification for the request during the mediation process, the Workers' Compensation Court does not have jurisdiction to entertain the present complaint about lack of specificity during mediation. While section 39-71-2401(4)(a), MCA (1993) references providing a specific demand prior to mediation, the remedy for that failure is provided in the mediation statute and requires decision by the mediator. Contrary to the insurer's argument, there is no statutory requirement that claimant provide justification to the insurer for a lump sum request for permanent partial disability benefits. The only criteria mentioned in section 39-71-741(2), MCA (1993) regarding approval is whether a settlement amount is inadequate. The insurer's request for dismissal is rejected; the WCC will review claimant's request for advance with regard to whether the amount is adequate.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-2401(1), MCA (1993). Where the insurer did not demand specification to support claimant's request for a lump-sum advance of PPD benefits during the mediation process, the insurer cannot complain to the WCC about inadequate specification during mediation. While section 39-71-2401(4)(a), MCA (1993) references providing a specific demand prior to mediation, the remedy for that failure is provided in the mediation statute and requires decision by the mediator, which could then be reviewed by the WCC.
Benefits: Lump Sums: Generally. Contrary to the insurer's argument, there is no requirement in section 39-71-741(2), MCA (1993) that claimant provide justification to the insurer for a lump sum request for permanent partial disability benefits. The only criteria mentioned is whether a settlement amount is inadequate.
Benefits: Permanent Partial Benefits: Generally. Contrary to the insurer's argument, there is no requirement in section 39-71-741(2), MCA (1993) that claimant provide justification to the insurer for a lump sum request for permanent partial disability benefits. The only criteria mentioned is whether a settlement amount is inadequate.
Mediation. Where the insurer did not demand specification to support claimant's request for a lump-sum advance of PPD benefits during the mediation process, the insurer cannot complain to the WCC about inadequate specification during mediation. While section 39-71-2401(4)(a), MCA (1993) references providing a specific demand prior to mediation, the remedy for that failure is provided in the mediation statute and requires decision by the mediator, which could then be reviewed by the WCC.

         The petitioner (claimant) in this matter seeks a $10, 000 partial lump-sum advance of the permanent partial disability benefits due her. A review of the voluminous filings in this case shows that the amount of the benefits due her are not in dispute, rather the respondent (insurer) resists any partial lump summing and requests that the matter be dismissed on account of claimant's failure to provide it with a detailed justification for her lump-sum request. (Defendant's Motion for Summary Ruling and Reply Brief in Support of Defendant's Motion for Summary Ruling.)

         The insurer argues that even though the parties mediated the claimant's lump-sum request the petitioner nonetheless failed to comply with mediation requirements since she has never provided respondent with a detailed justification for her lump-sum request. It relies on section 39-71-2401(4)(a), MCA (1993), which provides that prior to mediation,

[t]he party making a demand shall present the other party with a specific written demand that contains sufficient explanation and documentary evidence to enable the other party to thoroughly evaluate the demand.

         The insurer's argument is without merit. Initially, any objection to the sufficiency of the claimant's demand should have been presented in the first instance to the mediator. Section 39-71-2401(4)(c), MCA (1993), provides:

(c) Upon motion of a party or upon the mediator's own motion, the mediator has the authority to dismiss a petition if he finds that either party did not comply with this subsection [i.e., subsection (4), which includes the demand requirement quoted above]. A decision dismissing a petition under this subsection must be in writing and must state in detail the grounds for dismissal. The ...

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