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Marsh v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

September 13, 2000

GREGORY MARSH Appellant
v.
STATE COMPENSATION INSURANCE FUND Respondent.

          Submitted Date: August 4, 2000

          ORDER DISMISSING APPEAL

          MIKE McCARTER JUDGE.

         Summary: Appellant appeals from a decision of a hearing officer of the Department of Labor and Industry denying his claim for occupational disease benefits. The hearing was held after the 1999 amendments to the Workers' Compensation Act vested original jurisdiction over denied OD claims in this Court. However, as permitted by the amendments, 1999 Mont. Laws, ch. 442, § 31(2), the appellant elected to stay in the Department for his hearing. The appeal was filed more than 30 days after the Department Decision.

         Held: The appeal is dismissed for lack of jurisdiction. The Department hearing and the appeal to this Court are governed by section 39-71-612 (1997), which remains in effect for those cases in which the election to stay in the Department is made. The section requires an appeal to be filed "within 30 days after the department has issued its final determination." Even if 3 days is added for mailing, the appeal in this case was untimely. The deadline is jurisdictional: an untimely appeal (request for judicial review) is ineffective for any purpose.

         Topic:

         Appeals to Workers' Compensation Court: Timeliness. Claimant appealed to the Workers' Compensation Court following denial of his claim for occupational disease benefits by a hearing officer for the Department of Labor. Under section 39-71-612, MCA (1997), appeal dismissed for lack of jurisdiction where not filed within 30 days after the department issued its final determination, even adding three days for mailing. Although the 1999 statutes transferred original jurisdiction over occupational disease claims to the WCC, this claim was properly heard in the Department of Labor where claimant filed his claim before enactment of the 1999 statutes and elected to remain in the DOL contested case process.

         ¶1 This is an appeal from a decision of the Department of Labor and Industry (Department) denying appellant's claim that he suffers from an occupational disease involving his lower back, stomach problems, and blackout spells.

         ¶2 The record on appeal consists of the sworn statements of the appellant, who represents himself, 23 exhibits submitted by the State Fund, and a transcript of the November 23, 1999 hearing, including testimony from appellant Gregory Marsh (Marsh) as well as Dr. Gary Rapaport.

         Procedural and Factual Background

         ¶3 Appellant filed a claim for compensation on February 19, 1999, contending he suffered an occupational disease during the course of employment with Miller Oil Company. (December 10, 1999, order at 3.) On March 3, 1999, he filed a second claim stating he suffered an occupational disease in the course of employment with Can Am Convenient Stores. (Id.) The Department scheduled a medical examination of appellant with Dr. Gary Rapaport. (Id.)

         ¶4 Dr. Rapaport examined Marsh on June 29, 1999, and determined that his chronic mechanical back pain syndrome relates to three motor vehicle accidents between 1993 to 1997. (Id. at 4.) Dr. Rapaport further noted that Marsh's chronic back pain appeared to be a pre-existing condition, existing independent of specific workplace and employment activities, although workplace activities, such as kitchen grill work, may aggravate appellant's pain. (Id. at 4-5.)

         ¶5 Appellant's treating physician, Dr. James Nichols, also concluded that appellant's back pain resulted from injuries sustained in two motor vehicle accidents. (Id. at 2.) Dr. Nichols also diagnosed Marsh's stomach symptoms as Barrett's esophagus and opined that the condition was not related to work. (Id.)

         ¶6 Following Dr. Rapaport's evaluation, the Department issued an order referring copy of medical reports to the parties on July 13, 1999, denying Marsh's claim for occupational disease benefits. (Id. at 5.) Marsh then requested a hearing. (Id.)

         ¶7 A hearing was held on November 23, 1999, by telephone. The hearings officer, Michael T. Furlong, issued his findings of fact; conclusions of law; and final order on December 10, 1999, finding appellant ineligible for occupational disease benefits and dismissing his claim. The hearings officer determined that the record did not contain any medical evidence causally ...


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