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Hand v. Uninsured Employers' Fund11/30/2004
in the WCC on March 6, 2002. Thus, the UEF concludes, the WCC correctly allowed the UEF to raise its affirmative defenses in the WCC action.
Both the 1997 and 1999 versions of § 39-72-602, MCA, set forth the procedure to be followed after the Department receives the medical evaluator's report. In Hand's case, this report was filed on January 6, 1999. On that date, the 1997 version of the statute remained in effect. Section 39-72-602(2)(c)(i), MCA (1997), states, "If a second examination is not requested, the department shall issue its order determining whether the claimant is entitled to occupational disease benefits. . . ." No second examination having been requested, the Department issued an Order of Determination pursuant to § 39-72-602, MCA (1997), in which the Department concluded that Hand was entitled to benefits arising out of his Occupational Disease.
Section 39-72-602(2)(c), MCA (1999), states, "Upon receipt of the [medical evaluator's] report, if a dispute exists over initial compensability of an occupational disease, it is considered a dispute that, after mediation pursuant to department rule, is subject to the jurisdiction of the ." It is this version of the statute which the WCC concluded applied. However, the Department received the medical evaluator's report four months prior to the April 23, 1999, effective date of this statute. Thus, the procedural rules contained in the 1997 statutes clearly governed.
We thus conclude the WCC erred when it retroactively applied the 1999 version of this statute to an event which occurred during the time when the 1997 version was in effect. Just as it concluded that other events in Hand's case occurred under the 1997 procedural statutes--see 14, above--the WCC likewise should have addressed the issuance of the medical evaluator's report by the Department under the 1997 version of the applicable procedural statutes, because the receipt of the report and the Department's consideration of that report's effect on Hand's case both occurred well within the time period in which § 3972-602, MCA (1997), was in effect. In fact, this 1997 process was correctly followed by the Department, which issued a subsequent Order of Determination.
Both Hand and the UEF claim Epperson v. Willis Corroon Administrative Services Corporation (1997), 281 Mont. 373, 934 P.2d 1034, supports their position as to whether the February 1, 1999, Order of Determination became a "final order" pursuant to § 39-72-612, MCA (1997). We conclude that our Opinion in Epperson supports the result we reach here. The language of the Order of Determination is dispositive. It states that the parties have 20 days to request a hearing, pursuant to § 39-72-612, MCA, and that " hearing must be requested in order to perfect an appeal to the ." Hand perfected his appeal; the UEF did not. The Order then became final. The UEF cannot now take advantage of a new procedural law which did not come into effect until after its 20-day period in which to request a review expired.
The Order of Determination, as it pertained to liability, became final 20 days after the February 1, 1999, issuance of the Order of Determination. By failing to timely request a hearing so as to perfect its appeal, the UEF lost the opportunity to request a review of the Department's findings and conclusions. Thus, we conclude the WCC erred in allowing the UEF to raise substantive affirmative defenses when the matter was heard in the WCC.
Finally, we address the apportionment issue which was the subject of Hand's initial request for review of the Department's Order of Determination. In its February 1, 1999, Order of Determination, the Department concluded that Hand
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