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Weidow v. Uninsured Employers' Fund

Court of Workers Compensation of Montana

December 31, 2008

SHELLY WEIDOW Petitioner
v.
UNINSURED EMPLOYERS' FUND Respondent, and BRADLEY HOWARD/HOWARD FAMILY 1995 TRUST Respondent/Employer.

          Submitted: October 15, 2007

          ORDER DEEMING RESPONDENT'S MOTION TO DISMISS TO BE A MOTION FOR SUMMARY JUDGMENT, DENYING THE MOTION FOR SUMMARY JUDGMENT, AND DECLARING § 39-71-520(2), MCA, TO BE UNCONSTITUTIONAL

          JAMES JEREMIAH SHEA JUDGE

         Summary: Respondent Uninsured Employers' Fund moved for dismissal because it contends Petitioner did not timely file his petition with this Court. The UEF argues § 39-71-520(2), MCA, requires a petitioner to file a petition before this Court within 60 days of the mailing of the mediator's report or the UEF's determination becomes final. The mediator's report and recommendation was mailed on January 31, 2007. UEF notified the mediator and Petitioner that it would not accept the mediator's recommendation on February 21, 2007. Petitioner petitioned this Court on April 10, 2007, 69 days after the mediator's report was mailed. Petitioner argues that a reasonable interpretation of § 39-71-520(2), MCA, is that it is the mediator's report, and not the UEF's determination, that becomes final if no party petitions the Court within 60 days. Petitioner argues that another reasonable interpretation of the statute would allow 85 days to petition the Court. Petitioner argues that the statute is discretionary and not jurisdictional. Finally, Petitioner raises multiple constitutional challenges arguing that § 39-71-520(2), MCA, is void for vagueness, violates his constitutional right to equal protection under the law, and is an impermissible exercise of sovereign immunity.

         Held: Although Petitioner's contention that the department mediator's report becomes final absent a petition filed in this Court within 60 days is a reasonable interpretation, so is UEF's interpretation that the UEF's determination becomes final if no petition is filed. The time limit provided for in § 39-71-520(2), MCA, is not tolled during the 25-day period which the parties have to notify the mediator whether they accept the mediator's recommendation. The time limits imposed in § 39-71-520, MCA, are jurisdictional and bar this Court from waiving them upon equitable grounds. However, § 39-71-520(2), MCA, can reasonably be interpreted to mean that either the UEF's determination or the department mediator's report becomes final if a petition is not filed in this Court within 60 days. Therefore, the statute is unconstitutionally vague because it requires those of ordinary intelligence to guess as to its meaning.

         Topics:

Constitutions, Statutes, Regulations, and Rules: Montana Code Annotated: 39-71-520. Section 39-71-520, MCA, cannot clearly be interpreted to mean that it is the mediator's report which becomes final if settlement is not reached and a petition is not filed within 60 days of the mailing of the mediator's report. It can also reasonably be interpreted to mean that the UEF's determination becomes final if a petition is not filed within 60 days.
Constitutions, Statutes, Regulations, and Rules: Montana Code Annotated: 39-71-520. Section 39-71-520, MCA, is not tolled during the 25-day period which the parties have to notify the mediator as to whether they accept the mediator's recommendation.
Constitutions, Statutes, Regulations, and Rules: Montana Code Annotated: 39-71-520. The time limit imposed in § 39-71-520(2), MCA, is jurisdictional in nature and this Court is without authority to waive it.
Constitutions, Statutes, Regulations, and Rules: Montana Code Annotated: 39-71-520. Section 39-71-520(2), MCA, is unconstitutional because it is so ambiguous that it is void for vagueness. It can reasonably be interpreted to mean that either the Uninsured Employer's Fund's determination or the mediator's report become final if a petition is not filed within 60 days, and individuals of ordinary intelligence must necessarily guess at this section's meaning.
Constitutional Law: Vagueness. Section 39-71-520(2), MCA, is unconstitutional because it is so ambiguous that it is void for vagueness. It can reasonably be interpreted to mean that either the Uninsured Employer's Fund's determination or the mediator's report become final if a petition is not filed within 60 days, and individuals of ordinary intelligence must necessarily guess at this section's meaning.

         Standard of Review

         ¶ 1 A motion to dismiss may be granted when, in considering the motion, the petition is construed in the light most favorable to the nonmoving party, all allegations of fact contained therein are taken as true, and the court can conclude that the nonmoving party would not be entitled to relief based on any set of facts.[1] In the present case, the parties each submitted exhibits in support of their arguments. Thus, the motion is better characterized as a motion for summary judgment. A motion for summary judgment will be granted if the pleadings, discovery, and documents submitted by the parties show there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law.[2]

         ¶ 2 Parties are ordinarily entitled to notice when the Court intends to convert a motion to dismiss to a motion for summary judgment. However, in this case, the motion has largely been decided upon legal grounds and no material facts in dispute affect this motion. If either party believes the lack of notice is prejudicial, that party should notify the Court within ten days of this Order and the Court will consider reopening this matter.

         Factual Background

         ¶ 3 The facts pertinent to disposition of this matter are as follows:[3]

¶ 3a Petitioner Shelly Weidow was injured on June 13, 2006, while installing trim in Respondent/Employer's residence. Petitioner timely notified his employer of the injury and filed a claim for benefits in October 2006. The Uninsured Employers' Fund (UEF) denied liability. The matter went before a Department of Labor and Industry (department) mediator on January 4, 2007.
The mediator mailed her report and recommendation to the parties on January 31, 2007.
¶ 3b On February 21, 2007, Petitioner's counsel sent a letter to the mediator notifying her that Petitioner accepted her recommendation and was willing to negotiate a settlement based on the recommendation. In that letter, Petitioner's counsel also requested the mediator issue her "decision" as soon as possible.
¶ 3c The UEF also sent the mediator a letter on February 21, 2007. The UEF's letter stated that no additional information provided during the mediation reversed its earlier decision denying benefits. The UEF also stated that since it had not received any information that the claim was settled per the mediator's recommendation, it would continue to deny liability for the claim.
¶ 3d The parties apparently undertook settlement discussions, but did not reach a settlement. Petitioner filed his claim in this Court on April 10, 2007.

         Discussion

         ¶ 4 The UEF argues its motion to dismiss should be granted because Petitioner failed to petition this Court within the time period provided by statute. The statute at issue is § 39-71-520(2), MCA, which states:

(1) A dispute concerning uninsured employers' fund benefits must be appealed to mediation within 90 days from the date of the determination or the date that the determination is considered final.
(2) (a) If the parties fail to reach a settlement through the mediation process, any party may file a petition before the workers' compensation court.
(b) A party's petition must be filed within 60 days of the mailing of the mediator's report provided for in 39-71-2411unless the parties stipulate in writing to a longer time period for filing the petition.
(c) If a settlement is not reached through mediation and a petition is not filed within 60 days of the mailing of the mediator's report, the determination by the department is final.

         ¶ 5 As discussed further below, Petitioner contends that § 39-71-520(2), MCA, is capable of multiple interpretations, some of which would consider his petition to be timely filed. Specifically, Petitioner argues the "determination by the department" that becomes final as provided in § 39-71-520(2)(c), MCA, is the determination or final report issued by the department mediator. Petitioner also contends that the statute is unconstitutional in that it violates a claimant's equal protection rights or is void for vagueness. Petitioner's arguments are addressed in turn.

         A. Section 39-71-520, MCA, cannot clearly be interpreted to mean that it is the mediator's report which becomes final if a settlement is not reached and a petition is not filed within 60 days of the mailing of the mediator's report.

         ¶ 6 Petitioner argues that § 39-71-520, MCA, may be construed to mean that when a settlement is not reached and a petition is not filed within 60 days of the mailing of the mediator's report, the mediator's report becomes final.[4] Petitioner argues that § 39-71-520 (2)(b)-(c), MCA, refers to mediation conducted by the mediation unit of the department, and it is therefore reasonable to conclude that the "determination of the department" which becomes final if a petition is not filed within 60 days, is the department mediator's decision.[5]Petitioner argues that the cross-reference to § 39-71-2411, MCA, found at § 39-71-520(2)(b), MCA, supports this interpretation because § 39-71-2411(7), MCA, states in part, "If either party does not accept the mediator's recommendation, the party may petition the workers' compensation court for resolution of the dispute."[6] Petitioner argues that since the UEF was the party who would not accept the mediator's report, it is the UEF who should have petitioned the Workers' Compensation Court (WCC) for resolution of the dispute.[7]

         ¶ 7 UEF argues the plain language of the statute indicates that the resolution suggested by the mediator is not a binding "decision" or "determination," but only a recommendation incapable of becoming final.[8] Further, UEF contends no ambiguity exists as to what "determination" is referred to in the statute, and the only reasonable interpretation is that the UEF's determination becomes final if no resolution is reached in mediation and the claimant fails to file a petition within 60 days of the mailing of the mediator's report.[9]Although UEF argues the statute is clear ...


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