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Schelin v. CIGNA

Court of Workers Compensation of Montana

March 21, 2000

EVERETT D. SCHELIN Petitioner
v.
CIGNA a/k/a ACE Respondent/Insurer for STRUCTURAL SYSTEMS, INCORPORATED Employer.

          MEMORANDUM AND ORDER DISMISSING PETITION

          Mike McCarter Judge

         Summary:

         Claimant who had not mediated dispute with insurer filed petition seeking mandatory writ of injunction ordering insurer to authorize surgery.

         Held:

         Requirement that parties mediate workers compensation dispute prior to filing petition in WCC is jurisdictional. Petition asking WCC to order "emergency" surgery without requiring mediation dismissed. WCC suggests claimant seek expedited mediation.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code: 39-71-2408, MCA. Requirement that parties mediate workers compensation dispute prior to filing petition in WCC is jurisdictional. Petition asking WCC to order "emergency" surgery without requiring mediation dismissed. WCC suggests claimant seek expedited mediation.
Jurisdiction: Mediation. Requirement that parties mediate workers compensation dispute prior to filing petition in WCC is jurisdictional. Petition asking WCC to order "emergency" surgery without requiring mediation dismissed. WCC suggests claimant seek expedited mediation.
Mediation. Requirement that parties mediate workers compensation dispute prior to filing petition in WCC is jurisdictional. Petition asking WCC to order "emergency" surgery without requiring mediation dismissed. WCC suggests claimant seek expedited mediation.
Procedure: Emergency Petition. Requirement that parties mediate workers compensation dispute prior to filing petition in WCC is jurisdictional. Petition asking WCC to order "emergency" surgery without requiring mediation dismissed. WCC suggests claimant seek expedited mediation. New filing of emergency petition should be supported by letter from physician addressing urgency of situation, not just need for surgery.

         ¶1 The petition in this matter seeks an emergency hearing to determine claimant's entitlement to arm surgery, and states, inter alia:

Because this is an emergency situation and petitioner believes the time involved in mediation will dangerously prolong the surgery so that his permanent impairment will be increased, petitioner requests the Court issue a mandatory writ of injunction ordering insurer to authorize this necessary surgery.

(Petition for Emergency Hearing ¶ 5.) The quoted paragraph shows that claimant has not mediated the claim.

         ¶2 As should be apparent from the following statutes, mediation is a jurisdictional prerequisite to this ...


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