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Lawrence v. Uninsured Employers' Fund

Court of Workers Compensation of Montana

December 19, 2005

CHARLES LAWRENCE Petitioner
v.
UNINSURED EMPLOYERS' FUND Respondent MAHLON DONALD HESS Employer/Respondent.

          Submitted: October 26, 2005

          ORDER DENYING MOTION TO DISMISS

         Summary: The petitioner sought a recalculation of his benefits from the Uninsured Employers' Fund (UEF) based on a Form 1099 which was untimely provided to him by his employer. The Form 1099 reflected a higher wage than that used by the UEF to originally calculate the petitioner's benefits. The UEF denied the petitioner's request pursuant to § 39-71-520, MCA (2003), which requires a dispute concerning UEF benefits to be appealed to mediation within ninety days from the date of the determination.

         Held: The motion to dismiss is denied. The limitations period found at § 39-71 -520, MCA (2003), begins to run when the facts are such that the party seeking relief would have discovered the mistake in the exercise of ordinary diligence. Colmore v. Uninsured Employers'Fund, 2005 MT239, ¶42, 328 Mont. 441, 121 P.3d 1007. In the present case, the employer did not provide the petitioner with the Form 1099 until months after he was required to do so. The petitioner notified the UEF of the discrepancy between his own calculation and the wages reflected on the Form 1099 within the same month of receiving it from his employer. Accordingly, the petitioner exercised reasonable diligence and to bar him from seeking a recalculation based on the employer's untimely withholding of the Form 1099 would result in the inequitable result of punishing the petitioner for the employer's dereliction. Whether the Form 1099 is an accurate reflection of the petitioner's wages while working for the employer is a factual issue that should be determined at trial.

         Topics:

Limitations Periods: UEF Determinations. The limitations period found at § 39-71-520, MCA (2003), begins to run when the facts are such that the party seeking relief would have discovered the mistake in the exercise of ordinary diligence. Colmore v. Uninsured Employers' Fund, 2005 MT 239, ¶ 42, 328 Mont. 441, 121 P.3d 1007. Where the petitioner exercises ordinary diligence in determining his correct wage and the employer has withheld evidence that may provide for a calculation different from that which was originally arrived at, § 39-71-520, MCA (2003), will not operate as a barto consideration of the withheld evidence. Whether the wage information contained in the new evidence is an accurate reflection of the petitioner's wage is a question of fact to be determined at trial.
Constitutions, Statutes, Rules, and Regulations: Montana Code Annotated: § 39-71-520, MCA (2003). The limitations period found at § 39-71-520, MCA (2003), begins to run when the facts are such that the party seeking relief would have discovered the mistake in the exercise of ordinary diligence. Colmore v. Uninsured Employers' Fund, 2005 MT 239, ¶ 42, 328 Mont. 441, 121 P.3d 1007. Where the petitioner exercises ordinary diligence in determining his correct wage and the employer has withheld evidence that may provide for a calculation different from that which was originally arrived at, § 39-71-520, MCA (2003), will not operate as a bar to consideration of the withheld evidence. Whether the wage information contained in the new evidence is an accurate reflection of the petitioner's wage is a question of fact to be determined at trial.

         ¶1 The Uninsured Employers' Fund (UEF) has moved to dismiss the petition of Charles Lawrence (petitioner) pursuant to § 39-71-520, MCA (2003), which requires a dispute concerning UEF benefits to be appealed to mediation within ninety days from the date of the determination. Specifically, the UEF contends that the petitioner did not timely appeal the UEF's recalculation of benefits which was made on October 28, 2004. For the reasons set forth below, the UEF's motion is denied.

         Standard of Review

         ¶2 A motion to dismiss has the effect of admitting all well-pleaded allegations in the petition. In considering the motion, the petition is construed in the light most favorable to the petitioner and all allegations of fact contained therein are taken as true. Dismissal of the petition would be proper only if the Court can conclude that the petitioner would not be entitled to relief based on any set of facts. Plouffe v. State, 2003 MT 62, ¶ 8, 314 Mont. 413, 66 P.3d 316.

          Factual Background

         ¶3 On June 17, 2004, the petitioner suffered multiple injuries in the course of his employment with Mahlon Donald Hess (Hess) in Hill County, Montana. At the time of his injuries, the petitioner's employer was uninsured. Accordingly, benefits have been paid by the UEF.

         ¶4 The UEF initially notified the petitioner that it would pay benefits on September 16, 2004. On October 1, 2004, the petitioner provided evidence to the UEF, via letter from his counsel, that he had earned more wages while working for Hess than the figure upon which the UEF based its initial calculation. Accordingly, the petitioner requested a recalculation of benefits. The UEF recalculated the petitioner's benefits based on this new evidence and communicated this recalculation to the petitioner's counsel on October 28, 2004.

         ¶5 In April 2005, Hess sent a Form 1099 to the petitioner. This form reflected that the wages earned by the petitioner in 2004 were, in fact, higher than previously calculated. Within weeks after receiving the 1099 Form from Hess, the petitioner forwarded it to the UEF and requested another recalculation. The UEF ...


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