Submitted: April 29, 2005
DECISION AND ORDER DENYING EMERGENCY SETTING AND
DISMISSING PERMANENT TOTAL DISABILITY CLAIM
The petitioner/claimant previously filed a petition seeking
temporary total disability benefits. After two continuances,
the claimant gave notice of his intent to seek attorney fees.
When the Court indicated it would not allow the claimant to
amend his petition to seek such fees because the request was
far too late, the claimant chose to voluntarily dismiss his
petition. He then filed a new petition seeking not only
temporary total disability benefits and attorney fees but
also permanent total disability benefits and a penalty. He
asked that the case be set on an emergency basis. The
respondent opposed an emergency setting and moved to dismiss
the permanent total disability claim on account of the
claimant's failure to mediate that issue.
The request for an emergency setting is denied since no facts
supporting the request were alleged in the petition as
required by Court rules. Moreover, the claimant's own
conduct indicates there is no emergency. The motion to
dismiss the permanent total disability claim is granted since
the issue was not mediated. Lacking mediation, the
Workers' Compensation Court lacks jurisdiction to
adjudicate the issue.
Procedure: Emergency Petition. Rule 24.5.311
of the Rules of the Workers' Compensation Court requires
a petitioner seeking an emergency trial setting to set forth
in the petition sufficient facts showing that an emergency
setting is necessary. Where the petition sets out no facts
supporting the request, the request will be denied.
Constitutions, Statutes, Rules, and Regulations:
Workers' Compensation Court Rules: Rule
24.5.311. Rule 24.5.311 of the Rules of the
Workers' Compensation Court requires a petitioner seeking
an emergency trial setting to set forth in the petition
sufficient facts showing that an emergency setting is
necessary. Where the petition sets out no facts with respect
to the request, the request will be denied.
Procedure: Emergency Petition. Where the
claimant filed a previous petition and did not allege an
emergency; the trial setting for that prior petition was
continued three times; and the claimant ultimately dismissed
his prior petition to enable him to file a new, second
petition adding a claim for attorney fees, there is no
emergency with respect to the second petition.
Mediation: General. The Workers'
Compensation Court does not have jurisdiction to adjudicate a
request for permanent total disability benefits where the
claimant has not mediated his request. Mediation with respect
to a request for temporary total disability benefits does not
satisfy the mediation requirement since "any" issue
raised in the Workers' Compensation Court must be first
mediated. A request for permanent total disability benefits
is a separate and distinct issue.
Attorney Fees: Request For. A request for
attorney fees must be pled in the petition. (Refer to
Attorney Fees: Request For. Pursuant to the
scheduling order of the Workers' Compensation Court, a
claimant seeking attorney fees must provide the respondent
with "a particularization of the grounds or basis for
any penalty or attorney fees sought by the claimant" and
must do so by the date fixed in the order. (Refer to Footnote
Two matters are before the Court. The first is the
petitioner's request, set forth in his petition, that his
petition be set for trial on an emergency basis. The second
is the respondent's motion to dismiss the
petitioner's claim for permanent total disability
benefits since that claim has not been mediated.
On May 20, 2004, the petitioner (hereinafter
"claimant") filed his first Petition for Hearing.
(WCC No. 2004-1052.) He requested the Court to order a
reinstatement of his temporary total disability benefits. He
did not ask for attorney ...