Submitted Date: August 4, 2000
ORDER DISMISSING APPEAL
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.
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.
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
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.
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.
and Factual Background
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.)
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.)
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.)
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.)
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 ...