Hand v. Uninsured Employers' Fund11/30/2004
of this release. This release shall include, but is not limited to, all my claims for damages . . . and compensation of every kind . . . arising from . . . any conduct, acts, or omissions to act by Releasees in . . . various claims of mine arising as a result of injuries that I suffered on or about September 18, 1992 and October 10, 1992 at Florence, Montana, while working for [Roush].
On November 20, 1998, Hand filed a request for an evaluation of his knee problems by the Occupational Disease Panel. The Department of Labor and Industry ("Department") ordered a medical examination, after which the examining physician concluded that Hand was suffering from an Occupational Disease, but apportioned 75% of Hand's knee problems to injuries rather than disease. Based upon this evaluation, the Department issued an Order of Determination on February 1, 1999, in which it concluded that Hand was suffering from an Occupational Disease and entitled to benefits under the Occupational Disease Act. The Department further concluded that Hand was entitled to 25% of total disability benefits based upon the medical evaluation.
On February 5, 1999, Hand objected to the 25% recovery apportionment contained in the Order of Determination, and requested a hearing before the Department, pursuant to § 39-72-612, MCA (1997). The UEF neither filed an objection nor requested a hearing. Subsequently, on April 29, 1999, a Hearing Officer issued an Order and Notice Regarding Jurisdiction which advised the parties that, as of April 23, 1999, § 39-72-612, MCA, had been amended and the Department was required to transfer Hand's case to the WCC unless either party elected to have the case remain in the Department. Neither elected to do so, and the Department transferred the case to the WCC on May 24, 1999.
The WCC conducted a hearing on March 6, 2002. In the WCC hearing, Kathy Ann Brown, the supervisor of the UEF, conceded that the UEF did not appeal from the Department's Order of Determination, including its finding that Hand had an Occupational Disease. The WCC issued its Findings of Fact, Conclusions of Law, and Judgment ("Judgment") on August 28, 2002. The WCC stated the issues as: whether the UEF is precluded from asserting defenses to the claim for Occupational Disease benefits because it neither "appealed" nor "cross-appealed" from the February 1, 1999, Order of Determination; and, whether the general release Hand executed bars his claim for Occupational Disease benefits from the UEF.
In its Findings of Fact and Conclusions of Law, the WCC concluded that the 1999 amendments which transferred the case to the WCC before the Department conducted a contested case hearing, meant that the Order of Determination never became a "final order," and thus the UEF was not precluded from raising affirmative defenses for the first time in the WCC. The WCC determined that, because the provisions governing Occupational Disease proceedings are procedural, the 1997 version of the Occupational Disease Act applied to three events--Hand's request for a panel examination, the issuance of the Department's Order of Determination, and Hand's request for a contested case hearing. However, the WCC further determined that the 1999 version of the Occupational Disease Act governed the events which took place from April 23, 1999, onward, and thus, with the repeal of §§ 39-72-611 and -612, MCA (1997), the WCC became vested with original jurisdiction over Occupational Disease disputes, pursuant to § 39-72-602(2)(c), MCA (1999).
Noting that, pursuant to § 39-72-602(2)(c), MCA (1999), the WCC requested and received a Summary of Contentions from both Hand and the UEF, respectively, within the 20-day time period
Page 1 2 3 4 5 Montana Personal Injury Attorneys
Personal Injury Lawyers
|