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Baxter v. Uninsured Employers' Fund

Court of Workers Compensation of Montana

September 20, 2000

BRIAN BAXTER, Petitioner,
v.
UNINSURED EMPLOYERS' FUND, Respondent/and Third-Party Petitioner, NORTHERN ROCKIES CONSERVATION COOPERATIVE, Employer/Respondent.

          Submitted: August 29, 2000

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE MCCARTER JUDGE

         Summary of Case: Claimant suffered a work-related injury while working for an uninsured employer. He filled out and signed an accident information sheet when seeking medical care immediately following his injury and understood the medical provider would forward it to his employer. In fact the form was forwarded to the employer, which then returned it to claimant. Claimant, who was initially diagnosed with an ankle sprain, continued to experience difficulty with his ankle. A year and a half after his injury, he was finally diagnosed with a more serious injury, a posterior tibial tendon rupture, which will require surgery. After learning of the seriousness of his injury, he sought advice from an attorney and then filed a claim on an official claim form with the Uninsured Employers' Fund, which denied the claim as untimely. The Department, without notice to the UEF or employer, granted a waiver from the one-year limitation period. However, UEF and the employer requested a contested case hearing, which was thereafter removed to the Workers' Compensation Court following 1999 legislation giving the Court jurisdiction to hear controversies involving waivers.

         Held: The accident information sheet contained adequate information under section 39-71-601, MCA, and its submission to the employer satisfied the requirement that it be "presented in writing to the employer, the insurer, or the department, as the case may be." While one interpretation of the presentment requirement is that the claim must be presented to the employer if self-insured under plan one and to the Department if uninsured, the statute does not limit the presentment to plan one employers. Since uninsured employers are directly liable to a claimant for benefits, § 39-71-515(3), MCA, section 39-71-601, MCA, is reasonably construed as authorizing presentment to employers who are uninsured. The Court is precluded from writing in a restriction limiting employer to self-insured employers only. The claim was therefore sufficient and timely, and claimant is entitled to benefits. Further, the UEF is entitled to indemnification from the employer. Finally necessary to consider the waiver request, the Court notes that the failure of the Workers' Compensation Assistance Bureau to give the employer and UEF notice of claimant's application for a waiver and its action granting the waiver raise grave due process concerns. Notice should and must be given.

         Topics:

Administrative Procedure: Notice. Failure of Workers' Compensation Assistance Bureau to give employer and Uninsured Employers' Fund notice of claimant's application for waiver of one-year limitation period and action granting waiver raise grave due process concerns.
Claims: Filing. Accident Information Sheet completed by injured worker when seeking medical care immediately following injury and forwarded to employer contained adequate information under section 39-71-601, MCA (1995) and its submission to employer satisfied statutory requirement that within one year claim be "presented in writing to the employer, the insurer, or the department, as the case may be." Court refuses to read into statute any requirement that employee present claim to department rather than employer in cases where employer is not insured.
Claims: Limitations Period. Accident Information Sheet completed by injured worker when seeking medical care immediately following injury and forwarded to employer contained adequate information under section 39-71-601, MCA (1995) and its submission to employer satisfied statutory requirement that within one year claim be "presented in writing to the employer, the insurer, or the department, as the case may be." Court refuses to read into statute any requirement that employee present claim to department rather than employer in cases where employer is not insured.
Claims: Notice to Employer or Insurer. Accident Information Sheet completed by injured worker when seeking medical care immediately following injury and forwarded to employer contained adequate information under section 39-71-601, MCA (1995) and its submission to employer satisfied statutory requirement that claim be "presented in writing to the employer, the insurer, or the department, as the case may be." Court refuses to read into statute any requirement that employee present claim to department rather than employer in cases where employer is not insured.
Constitutional Law: Due Process: Procedural Due Process. Failure of Workers' Compensation Assistance Bureau to give employer and Uninsured Employers' Fund notice of claimant's application for waiver of one-year limitation period and action granting waiver raise grave due process concerns.
Limitations Periods: Claim Filing: Generally. Accident Information Sheet completed by injured worker when seeking medical care immediately following injury and forwarded to employer contained adequate information under section 39-71-601, MCA (1995) and its submission to employer satisfied statutory requirement that within one year claim be "presented in writing to the employer, the insurer, or the department, as the case may be." Court refuses to read into statute any requirement that employee present claim to department rather than employer in cases where employer is not insured.
Statutes and Statutory Interpretation: Inserting or Removing Terms. WCC refuses to read into section 39-71-601, MCA (1995) any requirement that employee of uninsured employer present claim to department rather than employer to satisfy one-year claim filing requirement of statute.
Uninsured Employers Fund: Indemnification. UEF entitled to indemnification from uninsured employer.

         ¶1 The trial in this matter was held on August 29, 2000, in Kalispell, Montana. Petitioner, Brian Baxter, (claimant), was present and represented by Mr. S. Charles Sprinkle. Respondent/Third-Party Petitioner, Uninsured Employers' Fund (UEF), was represented by Mr. Daniel B. McGregor. With the Court's permission, counsel for Employer/Respondent, Northern Rockies Conservation Cooperative (NRCC), was excused from attending, however, NRCC remains a party to this proceeding and will be bound by the decision of the Court.

         ¶2 This matter is submitted for decision on Exhibits 1 through 21, the agreement of counsel at trial as to essential, undisputed facts, copies of the depositions of David L. Neumann, D.P.M., Jay Maloney, M.D., and Brian P. Baxter, and brief testimony of the claimant.

         ¶3 Issues Presented: The parties set forth the following issues in their Pre-Trial Order.

1.Whether a claim was filed within the statutory period of one year per MCA 39-71-601;
2.Whether the Workers' Compensation Assistance Bureau's November 30, 1999 Order Waiving Claim Filing Time was constitutionally invalid.
3.Whether Brian's time requirement should be waived due to lack of knowledge of disability or latent injury.
4.Whether the June 8, 1997, accident is the cause of Brian's present medical condition.
5.If the condition was caused by the 6/8/97 accident, did Brian exacerbate the problem by his subsequent actions.
6.Is the Uninsured Employer's Fund entitled to reimbursement from Northern Rockies Conservation Cooperative for any and all benefits paid with respect to Mr. Baxter's Claim.

         (Pre-Trial Order at 2.)

         ¶4 Having considered the pre-trial order, the testimony presented at trial, the depositions, and exhibits, the Court makes the following:

         FINDINGS OF FACT

         ¶5 On June 8, 1997, while employed by NRCC, claimant twisted his right ankle. He was working in the course and ...


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