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Simons-Tollefson v. State Compensation Insurance Fund2/16/2000
ORDER APPOINTING GUARDIAN AD LITEM AND DENYING MOTION TO DISMISS
The petitioner in this case is Randell James Simons-Tollefson (Randell), the minor son of Randell James Tollefson (Tollefson). Tollefson was killed August 2, 1992, in a trucking accident. At the time of his death he was living with, but not married to Shelly Simons (Shelly), who is Randell's mother. Randell was born posthumously, approximately four months after the accident.
The PETITION FOR TRIAL alleges Tollefson died within the course and scope of employment with Big Z Trucking. The State Fund denies liability. Among other defenses, it argues that the claim is barred by section 39-71-601, MCA, which requires that a claim be filed within one year of the accident. Both parties agree that no claim was filed within the one-year limitations period, and the State Fund moved to dismiss. The motion was briefed and orally argued. During oral argument the Court questioned counsel whether Shelly has legal standing to pursue the claim on behalf of her son lacking her appointment as his general guardian or his guardian ad litem. At the Court's request, the parties filed supplemental briefs addressing the question, and the matter is now deemed submitted for decision.
I. Death Benefits
Under section 39-71-721, MCA (1992), the "beneficiaries" of a worker who dies as a result of a work-related injury are entitled to benefits.
The section provides in relevant part:
39-71-721. Compensation for injury causing death - limitation. (1)(a)If an injured employee dies and the injury was the proximate cause of such death, then the beneficiary of the deceased is entitled to the same compensation as though the death occurred immediately following the injury. A beneficiary's eligibility for benefits commences after the date of death, and the benefit level is established as set forth in subsection (2).
(2) To beneficiaries as defined in 39-71-116(3)(a) through (3)(d), weekly compensation benefits for an injury causing death are 66 2/3% of the decedent's wages. The maximum weekly compensation benefit may not exceed the state's average weekly wage at the time of injury. The minimum weekly compensation benefit is 50% of the state's average weekly wage, but in no event may it exceed the decedent's actual wages at the time of death.
(3) To beneficiaries as defined in 39-71-116(3)(e) and (3)(f), weekly benefits must be paid to the extent of the dependency at the time of the injury, subject to a maximum of 66 2/3% of the decedent's wages. The maximum weekly compensation may not exceed the state's average weekly wage at the time of injury.
Section 39-71-116(3)(b), MCA, provides that a minor child of a deceased worker is a beneficiary, thus Randell's entitlement to benefits is governed by subsection (2) of section 39-71-721, MCA.
Randell's claim is also governed by sections 39-71-604 and -601, MCA. Section 39-71-604, MCA, requires that a beneficiary seeking death benefits must file a written claim.
Since Randell must file a claim, he is a "claimant" and therefore subject to section 39-71-601, MCA, which provides:
39-71-601. Statute of limitation on presentment of claim - waiver. (1) In case of personal injury or death, all claims must be forever barred unless presented in writing to the employer, the insurer, or the department, as the case may be, within 12 months from the date of the happening of the accident, either by the claimant or someone legally authorized to act for him in his behalf.
(2) The department may waive the time requirement up to an additional 24 months upon a reasonable showing
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