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Dewitt v. Continental Insurance Co.

Court of Workers Compensation of Montana

February 17, 2004

DENISE DeWITT Petitioner
v.
CONTINENTAL INSURANCE COMPANY and OLD REPUBLIC INSURANCE COMPANY Respondents.

          Submitted: February 17, 2004

         APPEAL DISMISSED BY STIPULATION OF PARTIES 8/16/04

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter Judge.

         Summary: Claimant was diagnosed with occupationally related carpal tunnel syndrome in 1996 with a recommendation she have surgery. She declined surgery and continued working. Her symptoms worsened and in 2002 she decided to have surgery and filed an occupational disease claim at that time.

         Held: Claimant's occupational disease claim is time-barred under section 39-71-403, MCA (1995-2001), since it was required to be filed within one year.

         Topics:

Limitations Periods: Claim Filing: Occupational Disease. Section 39-71-403(1), MCA (1995-2001), requires a claimant to file an occupational disease claim "within 1 year from the date the claimant knew or should have known that the claimant's condition resulted from an occupational disease." The period may be waived for an additional two years but no more. § 39-71-403(2), MCA (1995-2001).
Constitutions, Statutes, Rules, and Regulations: Montana Code Annotated: 39-71-403 (1995-2001). Section 39-71-403(1), MCA (1995-2001), requires a claimant to file an occupational disease claim "within 1 year from the date the claimant knew or should have known that the claimant's condition resulted from an occupational disease." The period may be waived for an additional two years but no more. § 39-71-403(2), MCA (1995-2001).
Limitations Periods: Claim Filing: Occupational Disease. Schmill v. Liberty Northwest Ins. Corp., 2003 MT 80, 315 Mont. 51, 67 P.3d 290, which held the apportionment provision of section 39-72-706, MCA, unconstitutional did not affect the statute of limitations prescribed by section 39-72-403, MCA.

         ¶1 The trial in this matter was held in Helena, Montana on February 17, 2004. Petitioner, Denise DeWitt, (claimant) was present and represented by Mr. Bernard J. Everett. Respondent insurers were represented by Mr. William O. Bronson.

         ¶2 Exhibits: Exhibits 1 through 6 were admitted without objection.

         ¶3 Witness: Claimant testified. No depositions were submitted.

         ¶4 Issues Presented: As restated by the Court, the issues presented for decision are:

¶4a Is the claim in this case time-barred?
ΒΆ4b If the claim is not time-barred, is the claimant entitled to attorney fees and a penalty? ...

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