Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kessel v. Liberty Northwest Insurance Corp.

Court of Workers Compensation of Montana

August 4, 2005

DUANE KESSEL Petitioner
v.
LIBERTY NORTHWEST INSURANCE CORPORATION Respondent/Insurer.

          Submitted: April 22, 2005

         Appealed to Supreme Court 07/14/06 Affirmed 11/27/07

          ORDER DENYING MOTION FOR SUMMARY JUDGMENT

          MIKE MCCARTER, JUDGE

         Summary: The claimant petitioned the Court for a determination that he suffers from a work-related asbestos lung disease. The insurer moves to dismiss the petition as time-barred under section 39-71-2905(2), MCA (1995-2003).

         Held: With respect to occupational disease claims, section 39-71-2905(2), MCA (1995-2003), does not commence running until after a medical panel evaluation has been conducted and the insurer denies the claim following the evaluation. A pre-panel evaluation denial is not a denial under section 39-71-2905(2), MCA (1995-2003), since it does not give rise to a dispute over which the Workers' Compensation Court has jurisdiction. Under 39-72-602, MCA (2001), is deemed a "nonacceptance" rather than a denial of benefits.

         Topics:

Limitations Periods: Workers' Compensation Court Petitions. In occupational disease cases, the two-year limitations period prescribed by section 39-71-2905(2), MCA (1995-2003), begins to run only after the medical panel evaluation required in section 39-72-602, MCA (2001), has been held, a panel report issued, and the insurer has denied liability after reviewing the report. The limitations period is not triggered by a pre-panel denial of liability.
Constitutions, Statutes, Rules, and Regulations: Montana Code Annotated: § 39-71-2905, MCA (1995-2003). In occupational disease cases, the two-year limitations period prescribed by section 39-71-2905(2), MCA (1995-2003), begins to run only after the medical panel evaluation required in section 39-72-602, MCA (2001), has been held, a panel report has issued, and the insurer has denied liability after reviewing the report. The limitations period is not triggered by a pre-panel denial of liability.

         ¶1 The petitioner (claimant) seeks occupational disease benefits for an asbestos-related lung disease allegedly caused by his exposure to asbestos while working at Stimson Lumber Company (Stimson) in Libby, Montana. Stimson was insured by the respondent, Liberty Northwest Insurance Corporation (Liberty). Liberty moves for summary judgment on the ground that the claimant's petition is time-barred.

         Uncontested Facts

         ¶2 Through affidavits and exhibits attached to those affidavits, Liberty has tendered the following material facts, none of which are disputed by the claimant:

¶2a The claimant submitted a claim for compensation dated December 3, 2001, wherein he stated he was suffering from "[l]ung disease caused by years of asbestos exposure" while working for Stimson. (Ex. A to Affidavit of Gary Schild.)
¶2b On August 2, 2002, an adjuster for Liberty wrote a letter to the claimant notifying him that:
Based on the healthcare information received as of this date, this letter is to notify you that your claim for asbestos related disease is denied. It is our opinion there is not sufficient evidence to indicate this ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.