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Howe v. Uninsured Employers' Fund

Court of Workers Compensation of Montana

December 23, 2005

ERIC HOWE Petitioner
v.
UNINSURED EMPLOYERS' FUND, MIKE WILMER, and STEVE HOWE Respondents IN RE: ROGER KURTZ Respondent/Claimant.

          Submitted: November 23, 2005

          ORDER DENYING MOTION TO DISMISS

          JAMES JEREMIAH SHEA JUDGE.

         Summary: Respondent, Uninsured Employers' Fund, sought to dismiss the Petition for Appeal for failure to file a timely appeal to mediation. Respondent argued that § 39-71-520(1), MCA (2003), required Petitioner to file for mediation with the mediation unit within ninety days if Petitioner disputed Respondent's determination that he was the employer of the claimant. Although Petitioner did not complete the specific form used by the UEF to appeal a determination, he did send a letter addressed to "Labor & Industry" on January 20, 2004, which expressed his disagreement with Respondent's determination and stated unambiguously that he was not the Claimant's employer. The letter was received by Respondent on January 23, 2004. However, Respondent did not forward the letter to the mediation unit until after the ninety-day period to appeal had expired.

         Held: The motion to dismiss is denied. Section 39-71-520(1), MCA (2003), states that a dispute concerning Uninsured Employers' Fund benefits must be appealed to mediation within ninety days. The statute does not specifically address in any way, however, the method by which an appeal is perfected. Petitioner, acting pro sé, notified Respondent by letter that he disputed its determination. This letter was addressed to the Department of Labor and Industry and was received by Respondent within the ninety-day period. Although Petitioner did not use the form provided by Respondent, his letter dated January 20, 2004, put Respondent on notice of Petitioner's disagreement and substantively complied with the requirement of § 39-71-520(1), MCA (2003), to appeal to mediation within ninety days.

         Topics:

Uninsured Employers' Fund: Appeal of a UEF Benefit Determination. Section 39-71-520(1), MCA (2003), requires that following a benefits determination by the Uninsured Employers' Fund, an aggrieved party must appeal to mediation within ninety days, otherwise the determination is final. A petitioner may effectively meet the requirements of § 39-71-520(1), MCA (2003), if a petitioner notifies the Uninsured Employers' Fund in writing of his or her disagreement with its decision.
Limitations Periods: UEF Determinations. A pro sé petitioner's letter clearly stating his or her disagreement with the Uninsured Employers' Fund determination effectively puts the Uninsured Employers' Fund on notice for purposes of filing a timely appeal to mediation.

         ¶1 The Uninsured Employers' Fund (UEF) has moved to dismiss the petition of Eric Howe (Petitioner) pursuant to § 39-71-520(1), MCA (2003), [1] which requires a dispute concerning Uninsured Employers' Fund benefits to be appealed to mediation within ninety days from the date of the determination at issue. Specifically, the UEF contends that Petitioner failed to file a petition for mediation with the mediation unit within the ninety-day time period. 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 is proper only if the Court can conclude that Petitioner would not be entitled to relief based on any set of facts.[2]

         Factual Background

         ¶3 On October 28, 2003, the UEF determined that Petitioner was the employer of Roger Kurtz (Kurtz). The UEF sent a letter to Petitioner on October 28, 2003, informing him of its decision. The letter stated, "[u]nder section 39-71-520 of the Workers' Compensation Act if you do not appeal this determination within 90 days from the date of this letter this determination is considered final." Petitioner called the UEF on November 21, 2003, and informed a UEF representative that he wished to appeal the UEF's determination. On January 15, 2004, Petitioner called Bernadette Rice, a UEF claims adjuster, and told Ms. Rice that he disputed the UEF's determination that he was Kurtz's employer. Ms. Rice verified that Petitioner possessed a petition for mediation form and also verified that Petitioner understood he needed to file the form with the mediation unit. On January 23, 2004, Ms. Rice received a letter from Petitioner disputing the determination that he was Roger Kurtz's employer. Though the letter set forth in some detail Petitioner's position, it did not include the Petition for Workers' Compensation Mediation Conference form. The UEF then forwarded the letter to the mediation unit on February 13, 2004, eighteen days after the expiration of the appeal deadline.

         Discussion

         ¶4 The UEF argues that Petitioner failed to appeal its determination that he was Kurtz's employer to mediation within ninety days as required by law. The ...


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