Submitted: May 5, 2005
ORDER DENYING SUMMARY JUDGMENT
The claimant filed two occupational disease claims with
respect to her shoulders, one in 2000 with Liberty Northwest
Insurance Corporation and the second in 2002 with the Montana
State Fund. Liberty initially denied the claim in 2000 but
then agreed to pay medical bills pursuant to section
39-71-615, MCA (1999). The Montana State Fund has been paying
benefits under a reservation of rights and brought a petition
for indemnification, asking that Liberty be determined liable
for benefits for the claimant's shoulder condition.
Citing the two-year limitations period in section
39-71-2905(2), MCA (1997-2003), Liberty moved for summary
judgment, arguing that the petition is barred on account of
the State Fund's and the claimant's failure to
petition the Court within two years of Liberty's denial.
It also urged that the claim is barred by the claimant's
failure to file a written claim with Liberty within one year
as required in section 39-72-403, MCA (1999).
Liberty has not shown as an uncontroverted matter that more
than one year prior to her filing her claim the claimant was
aware that her condition was work related; therefore, Liberty
is not entitled to summary judgment on that ground. Moreover,
where an insurer initially denies a claim but thereafter
agrees to pay medical bills under section 39-71-615, MCA
(1999), the subsequent agreement supercedes the original
denial, in effect rescinding it, and places the claim in a
status of being neither accepted nor denied. Therefore, until
there is a second denial pursuant to section 39-71-615(3),
MCA (1999), the two-year limitations period for filing a
petition in the Workers' Compensation Court does not
Limitations Periods: Occupational Disease.
Section 39-72-403, MCA (1999), required a claimant to file a
claim for an occupational disease "within 1 year from
the date the claimant knew or should have known that the
claimant's condition resulted from an occupational
disease." Under the plain language of the provision, the
limitations period begins running only when the claimant is
not only aware of her condition but is aware that the
condition resulted from her work. The fact that the claimant
received care for her condition more than one year prior to
the filing of her claim does not start the running of the
limitations period unless more than one year prior to filing
the claim she was also aware that her condition was work
Limitations Periods: Workers' Compensation Court
Petitions. Where an insurer initially denies a claim
but thereafter agrees to pay medical bills under section
39-71-615, MCA (1999), the subsequent agreement supercedes
the original denial, in effect rescinding it, and places the
claim in a status of being neither accepted nor denied.
Therefore, until there is a second denial pursuant to section
39-71-615(3), MCA (1999), the two-year limitations period for
filing a petition in the Workers' Compensation Court does
not commence running.
Through its petition in this case, the Montana State Fund
(State Fund) seeks indemnification from Liberty Northwest
Insurance Corporation (Liberty) for benefits it has paid and
is continuing to pay Annetta Laundry (claimant) on account of
an alleged work-related bilateral shoulder condition. The
claimant has filed a response to the petition alleging that
either Liberty or State Fund is liable for her shoulder
Liberty moves for summary judgment,  urging that any claim for
indemnification or benefits is barred by the two-year statute
of limitations set out section 39-71-2905(2), MCA
(1997-2003), and by the claimant's failure to file her
claim within one year of learning of her occupational
disease, § 39-72-403, MCA (1999).
The following facts are uncontroverted:
¶3a On or about August 10, 2000, SLC Investments Cost
Cutters (Cost Cutters) filed a First Report of Occupational
Injury or Occupational Disease on behalf of the claimant.
(Affidavit of Chris Helmer, Ex. 1.) The report states,
"Employee is having problems with bursitis in her arms .
. . Dr visits reveal this is work related." The report
went on to list the shoulders as the affected body part and
the cause of the condition as "continuous hair
¶3b The first report stated that the claimant had been
employed by Cost Cutters since ...