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Hoff v. Uninsured Employers' Fund

Court of Workers Compensation of Montana

July 19, 2000

ANNE MARIE HOFF Petitioner
v.
UNINSURED EMPLOYERS' FUND Respondent LAUBACH & LAUBACH, L.L.C., d/b/a YANKEE JIM TRADING POST Employer.

          Submitted: June 23, 2000

          ORDER DENYING MOTION TO DISMISS

          MIKE McCARTER, JUDGE

         Summary of Case: The UEF moves to dismiss a petition requesting reinstatement of temporary total disability (TTD) benefits, arguing that the petition is untimely under section 39-71-520, MCA (1999), since claimant failed to request mediation within 90 days of a UEF letter advising her that she was entitled to a 5% impairment award because her treating physician had found her at maximum healing, able to return to work, and suffering from a 5% impairment.

         Held: Under section 39-71-520, MCA (1999), a request for mediation must be made within 90 days of a UEF "determination." The only determination made in the UEF letter concerned permanent partial disability (PPD) benefits. While one conversant in the law may have figured out that by implication the UEF was denying further TTD benefits, a "determination" cannot be made by implication; it must be express and unequivocal. Therefore, the limitations period with respect to the TTD claim was not triggered by the letter and the TTD claim is not time barred.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated, section 39-71-520, MCA (1993-2001). Although the statute requires a dispute concerning uninsured employers' fund benefits to be appealed to mediation within 90 days from the date of the determination or the date the determination became final, a letter from the UEF to claimant discussing permanent partial disability benefits was not a determination regarding temporary total disability benefits and thus did not commence the running of the appeal period regarding TTD entitlement.
Constitutions, Statutes, Regulations and Rules: Montana Code Annotated, section 39-71-520, MCA (1993-2001). The triggering event for running of the 90 days to appeal to mediation from a determination of the uninsured employers' fund is not receipt of the determination, but the determination itself.
Limitations Periods: UEF Determinations. Although section 39-71-520, MCA (1999) requires a dispute concerning uninsured employers' fund benefits to be appealed to mediation within 90 days from the date of the determination or the date the determination became final, a letter from the UEF to claimant discussing permanent partial disability benefits was not a determination regarding temporary total disability benefits and thus did not commence the running of the appeal period regarding TTD entitlement.
Limitations Periods: UEF Determinations. The triggering event for running of the 90 days to appeal to mediation from a determination of the uninsured employers' fund under section 39-71-520, MCA (1999) is not receipt of the determination, but the determination itself.
Uninsured Employers' Fund: Appeal of UEF Benefits Determination. Although section 39-71-520, MCA (1999) requires a dispute concerning uninsured employers' fund benefits to be appealed to mediation within 90 days from the date of the determination or the date the determination became final, a letter from the UEF to claimant discussing permanent partial disability benefits was not a determination regarding temporary total disability benefits and thus did not commence the running of the appeal period regarding TTD entitlement.
Uninsured Employers' Fund: Appeal of UEF Benefits Determination. The triggering event for running of the 90 days to appeal to mediation from a determination of the uninsured employers' fund under section 39-71-520, MCA (1999) is not receipt of the determination, but the determination itself.

         ¶1 The petitioner/claimant (claimant) in this case suffered an industrial accident on August 5, 1999. Her employer was uninsured but the Uninsured Employers' Fund (UEF) accepted liability for her claim and initiated temporary total disability (TTD) benefits. On November 16, 1999, the UEF converted her benefits to permanent partial disability (PPD) benefits. She now seeks reinstatement of her TTD benefits. The UEF and the employer seek dismissal of her request on the ground that she failed to request mediation within 90 days, as provided in section 39-71-520, MCA (1999).

         Stipulated Facts

         ¶2 For purposes of the pending motions, the parties have entered into a stipulation of facts. The facts, paraphrased and abbreviated by the Court, are as follows:

•On August 31, 1999, the claimant filed a claim for compensation for an August 5, 1999, back injury at work.
•At the time of claimant's injury, her employer was uninsured. Therefore, the claim ...

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