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Peterson v. Montana Schools Group Insurance Authority

Court of Workers Compensation of Montana

June 2, 2005

MARK PETERSON Petitioner
v.
MONTANA SCHOOLS GROUP INSURANCE AUTHORITY Respondent/Insurer.

          Submitted: April 29, 2005

          DECISION AND ORDER DENYING EMERGENCY SETTING AND DISMISSING PERMANENT TOTAL DISABILITY CLAIM

          MIKE MCCARTER JUDGE.

         Summary: 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.

         Held: 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.

         Topics:

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 Footnote 1.)
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 1.)

         ¶1 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.

         Factual Background

         ¶2 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 ...


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