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Hand v. Uninsured Employers' Fund11/30/2004
legislated by that statute. The WCC then characterized those Contentions as pleadings, rather than as issues appealed from the Department's Order of Determination.
Taking Hand's and the UEF's Contentions into account, the WCC made findings and conclusions on the Contentions presented by the UEF which will be detailed below to the extent necessary to support this Opinion.
The WCC concluded that Hand's settlement of his civil action released and barred his Occupational Disease claim, and that therefore the UEF was not liable for Hand's Occupational Disease. Hand timely appealed to this Court.
STANDARD OF REVIEW
We review the findings of fact of the WCC to determine if they are supported by substantial, credible evidence, and we review its conclusions of law to determine if they are correct. Geiger v. Uninsured Employers' Fund , 2002 MT 332, 13, 313 Mont. 242, 13, 62 P.3d 259, 13 (citations omitted).
DISCUSSION
Given that the 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?
Hand argues that the UEF did not raise the substantive release issue before the Department, and it was error for the WCC to allow the UEF to raise it at later stages of the proceedings. He claims the Department's Order of Determination is a final order and cannot be appealed unless a request for hearing is presented within 20 days of the date the Department issues the Order of Determination, pursuant to § 39-72-612, MCA (1997). Therefore, he argues, the WCC had no authority to disturb the Department's conclusion that Hand is entitled to Occupational Disease benefits. Hand further asserts that the UEF's failure to request its own review of the Order of Determination means that the only issue properly before the WCC was the one raised and identified by Hand: the 25% apportionment of his total disability benefits.
The Department's Order of Determination states in pertinent part:
The parties were given an opportunity to request a reexamination of the claimant or a hearing prior to the Department's Order of Determination, but no such request has been received. . . . he Department concluded the claimant is suffering from an occupational disease and is entitled to benefits under the Occupational Disease Act. IT IS THEREFORE ORDERED the claimant is entitled to . . . 25% . . . of their total disability benefits if they suffer a total wage loss as a result of the occupational disease. The claimant is also entitled to medical and hospital expenses directly related to their occupational disease. . . . Pursuant to 39-72-612, MCA, the parties are hereby notified a party adversely affected by this Order of Determination has twenty (20) days from the date of this Order to request a hearing before the Department of Labor & Industry Legal Division. . . . A hearing must be requested in order to perfect an appeal to the Workers' Compensation Court. . . .
The UEF claims that the Order of Determination was not a final order, and thus Hand's request for a hearing was not an "appeal" pursuant to § 39-72-612, MCA (1997), but rather a request for an initial hearing pursuant to § 39-72-611, MCA (1997). The UEF adds that it was not until further proceedings were held in the WCC that a "trial" took place. The UEF claims that, because neither Hand nor the UEF elected to remain in the Department's contested case process, the first and only hearing on Hand's Occupational Disease claim took place
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