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Ginger Dostal v. Uninsured Employers' Fund

November 15, 2012

GINGER DOSTAL PETITIONER
v.
UNINSURED EMPLOYERS' FUND RESPONDENT.



The opinion of the court was delivered by: James Jeremiah Shea Judge

ORDER GRANTING PETITIONER'S REQUEST FOR PENALTY AND ATTORNEY FEES

Summary: After a trial of the issues, the Court determined that the UEF was unreasonable in adjusting Petitioner's claim. The Court bifurcated the issue of whether the UEF could be held liable for attorney fees and a penalty, pursuant to §§ 39-71-611 and -2907, MCA, respectively.

Held: Under the statutes applicable in the present case, the UEF may be found liable for attorney fees and a penalty. Since I have adjudged the UEF's adjusting to be unreasonable in the present case, I conclude Petitioner is entitled to her attorney fees and a penalty against the UEF.

¶ 1 The trial in this matter occurred on April 25-26, 2011, in Great Falls, Montana. Petitioner Ginger Dostal was present and was represented by J. Kim Schulke. Leanora O. Coles represented Respondent Uninsured Employers' Fund (UEF). Bernadette Rice, claims examiner for the UEF, was also present.

¶ 2 Pertinent to this Order, after hearing the evidence presented at trial, I concluded that the UEF had been unreasonable in its handling of Dostal's claim and issued findings of fact and conclusions of law accordingly.*fn1 In subsequent orders granting reconsideration of those findings and conclusions, I further held that the UEF had unreasonably refused to pay certain impairment ratings,*fn2 and had unreasonably refused to reimburse Dostal for certain travel expenses.*fn3

¶ 3 In the Pretrial Order, the parties raised the issue of whether Dostal could recover attorney fees and a penalty against the UEF.*fn4 I ordered the parties to participate in post-trial oral argument on the issue. Having considered the parties' oral arguments as well as the evidence previously presented to the Court, I have concluded that Dostal is entitled to her attorney fees and a penalty against the UEF, pursuant to §§ 39-71-611 and -2907, MCA, respectively, for the reasons set forth below.

¶ 4 On May 24, 1993, Dostal suffered an industrial injury to her left and right ankles and her back when she fell off a roof while performing her job duties as a roofer for Randy Crowley Construction in Harlowton, Montana.*fn5 Dostal's employer was uninsured at the time of her industrial injury and therefore the UEF administers her claim.*fn6

¶ 5 This case is governed by the 1991 version of the Workers' Compensation Act since that was the law in effect at the time of Dostal's industrial accident.*fn7

¶ 6 Under § 39-71-611(1), MCA:

The insurer shall pay reasonable costs and attorney fees as established by the workers' compensation court if:

(a) the insurer denies liability for a claim for compensation or terminates compensation benefits;

(b) the claim is later adjudged compensable by the workers' compensation court; and

(c) in the case of attorneys' fees, the workers' compensation court determines that the insurer's actions in denying liability or ...


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