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Hand v. Uninsured Employers' Fund11/30/2004
Submitted on Briefs: December 9, 2003
Dennis Hand appeals the denial of his claim against the Uninsured Employers' Fund ("UEF") by the Workers' Compensation Court ("WCC"). The WCC concluded that a general release Hand executed which settled his claims against his employer and his employer's general liability insurance carrier likewise released the UEF from liability for Hand's claims. We reverse.
ISSUE
Hand presents four issues for review. We conclude, however, that the following restated issue is dispositive:
Given that UEF failed to perfect an appeal from the Department of Labor and Industry's Order of Determination which concluded that the UEF was liable to Hand for his Occupational Disease, was it error for the WCC to subsequently allow the UEF to raise affirmative defenses in the WCC action?
FACTUAL AND PROCEDURAL BACKGROUND
Hand worked as a ranch hand/manager for G. Jon Roush for approximately 12 years, ending his employment in January 1993. During Hand's employment, Roush was an uninsured employer within the meaning of ยง 39-71-501, MCA (1991).
In 1984, Hand fell while loading hay and injured one or both of his knees. Hand apparently did not seek medical treatment at that time. In 1989, Hand was treated by Dr. Patrick R. Robins and reported that he had severely twisted his left knee four years earlier. Hand stated that swelling and pain had continued from the accident onwards, and he was seeking treatment because his condition had recently worsened. Dr. Robins recommended arthroscopic surgery, but it was evidently not performed at that time.
In September 1992, Hand returned to see Dr. Robins and reported he was having problems with both knees and that his right knee occasionally locked. Dr. Robins recommended an arthroscopic evaluation of Hand's knees. Hand underwent bilateral knee arthroscopy in mid-October 1992, and his knees gradually improved over the next several months.
On October 10, 1992, Hand filed a claim with the UEF for a back injury. Bernadette Rice, the claims adjuster for the UEF, testified that a narrative attached to the claim mentioned knee problems arising from a 1983 fall. Rice accepted the back claim on behalf of the UEF but denied that the UEF was liable for any knee injury.
On March 31, 1993, Hand filed a second claim with the UEF in which he claimed he suffered from an Occupational Disease of both knees. The claim was apparently denied, and Hand did nothing further on this claim until 1998.
At some point prior to September 1995, Hand sued Roush and Roush's wife over back injuries he allegedly suffered during specific incidents on September 18 and October 10, 1992. After a trial, a $550,000 judgment was entered against the Roushes. On September 26, 1995, Hand and the Roushes entered into an Assignment and Agreement in which Hand agreed not to enforce the judgment in exchange for $5,000 and the right to pursue an action against Travelers Insurance Companies--the Roush's general liability insurance carrier. The Agreement stated: "This assignment and agreement does not affect [Hand's] right to proceed with a claim, if any, of benefits."
Hand negotiated a settlement with Travelers Insurance Companies and executed a General Release in exchange for payment of $328,500. The General Release recited specific parties which were released from liability, and added, all other persons, firms, or corporations . . . whether herein named or referred to or not, and who, together with the above-named released parties, may be in anywise directly or indirectly liable to me . . . from the beginning of time until the date
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