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Employment Relations Division v. Total Mechanical Heating & Air Conditioning

Court of Workers Compensation of Montana

November 17, 2000

EMPLOYMENT RELATIONS DIVISION, UNINSURED EMPLOYERS' FUND Appellant
v.
TOTAL MECHANICAL HEATING & AIR CONDITIONING, et al. Respondents/Cross Appellants and HUMAN DYNAMICS CORPORATION, and HRC/HRC ARMCO, INCORPORATED Respondents.

          Submitted: November 9, 2000

          ORDER DENYING MOTION TO AMEND SEPTEMBER 13th ORDER

          MIKE MCCARTER, JUDGE

         Summary of Case: The Court previously permitted respondent employers to submit employee information to enable the Uninsured Employers' Fund (UEF) to recalculate penalties. A prior extension was granted requiring all records be submitted by October 12, 2000, and specifying the form of the records. On October 13th, the Court received a motion to amend the Order to allow less complete records to be provided. Actual records were later provided to the Court on November 8, 2000, and to UEF on November 13, 2000, more than a month late.

         Held: The motion is untimely; moreover the information tendered is incomplete, inadequate, and late. The motion is therefore denied. Since respondents failed to comply with the Court's prior Order, the UEF is relieved from its agreement to recompute the penalties.

         Topics:

Procedure: Reconsideration. Motions to reconsider must be filed within 20 days. Rule 24.5.337.
Penalties: Uninsured Employers. Respondent employers failed to comply with the Order which permitted them to submit employee records so the UEF could recompute penalties; therefore, the UEF is relieved its agreement to recompute the penalties. The order allowing recomputation was a matter of grace since the penalties were upheld by the Court.

          ¶1 In my June 26, 2000 decision and order on appeal, 2000 MTWCC 39, at paragraph 85, I affirmed the Uninsured Employers' Fund's (UEF) computation of penalties against the respondent Montana employers (the Human Dynamics Corporation's (HDC) client companies), noting that the alleged deficiencies in computing the penalties were "due to the actions of HDC and the client companies, which refused to produce the [employee] records in Montana where Department [of Labor and Industry] employees work." (¶ 85.) Nonetheless, I recognized that the penalties might be more precisely calculated upon production of "wage records and classification information." (2000 MTWCC 39, ¶ 86) I then made the following determination:

Unless the UEF objects, I will grant the client companies 30 days in which to provide the UEF with the information necessary for more accurate calculations. If that information is satisfactory, then I will order that the penalties be recalculated based on the information.

(Id.) UEF responded three days later, stating:

The UEF has no objection to recalculating the penalties assessed against the Montana client companies . . . based upon the timely submission of employee wage records pursuant to the order of this Court.

(APPELLANT'S NOTICE OF NON-OBJECTION TO ORDER AND REQUEST FOR CONDITIONS IN EVENT OF APPEAL at 2.)

         ¶2 On July 21, 2000, some three and a half weeks after my initial Order, counsel for respondents (Mr. Utick), requested a telephone conference with the Court to discuss deadlines and procedures for recomputing the penalties. (ORDER VACATING FINAL CERTIFICATIONAND AMENDING DECISION AND ORDER ON APPEAL at ¶ 3.) A telephone conference was held among myself, Mr. Utick and Mr. Daniel B. McGregor, attorney for the UEF. Mr. Peter J. Stockstad, who represented one of the other parties, was inadvertently left out of the telephone conference. Mr. Stockstad was later informed of the conference and the agreement reached by counsel and the Court, and he agreed with the resolution.

         ¶3 During the conference, counsel and I agreed to amendment of paragraphs 93 and 94. The amendment to paragraph 94 provided that the decision in this case shall not ...


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