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Smith v. State Compensation Fund2/17/2000
r 49 days of interim benefits while claimant mediated his claim. On February 4, 2000, the Department denied the request for reasons which will be discussed later in this Order.
On February 7, 2000, claimant, through his attorney, wrote the Court requesting that it issue an order directing payment of benefits under section 39-71-610, MCA.
In his affidavit claimant states that when he reported his accident in May 1998, his supervisor "did not offer any additional documentation to me to fill out" and he [claimant] "did not ask additional questions at that time because my supervisor discourages injury claims and does not want any record of injury claims reflected on his safety record." (AFFIDAVIT OF KEVIN E. SMITH 3.)
Information furnished by the State Fund shows that claimant has filed six claims, including the present one, since 1994 while working for the Montana Department of Transportation. One was filed for an April 20, 1998 accident, which was just days before the accident at issue here, and another was filed with respect to a November 24, 1998 accident. Two accidents in 1994 and one in 1996 were also reported to the insurer.
According to his attorney, claimant is in dire financial straits and unable to meet his home mortgage payments; foreclosure is pending. However, counsel acknowledged that even if 49 days of benefits are ordered the claimant will be in the same position at the end of those 49 days.
Statute Involved
At the time of the claimant's 1998 accident, section 39-71-610, MCA (1997), provided:
Termination of benefits by insurer -- department order to pay disputed benefits prior to hearing -- limitation on order -- right of reimbursement. If an insurer terminates biweekly compensation benefits and the termination of compensation benefits is disputed by the claimant, the department may, upon written request, order an insurer to pay additional biweekly compensation benefits prior to a hearing, but in no event may the biweekly compensation benefits be ordered to be paid under this section for a period exceeding 49 days or for any period subsequent to the date of a hearing. If after a hearing it is held that the insurer was not liable for the compensation payments ordered by the department, the insurer has the right to be reimbursed for such payments by the claimant.
The 1999 legislature amended the section to provide for a hearing before the Court. As revised, the section now provides:
Termination of benefits by insurer -- department order to pay disputed benefits prior to hearing or mediation -- limitation on order -- right of reimbursement. If an insurer terminates biweekly compensation benefits and the termination of compensation benefits is disputed by the claimant, the department may, upon written request, order an insurer to pay additional biweekly compensation benefits prior to a hearing before the workers' compensation court or prior to mediation, but in no event may the biweekly compensation benefits be ordered to be paid under this section for a period exceeding 49 days or for any period subsequent to the date of the hearing or mediation. A party may appeal this order to the workers' compensation court. If after a hearing before the workers' compensation court it is held that the insurer was not liable for the compensation payments ordered by the department, the insurer has the right to be reimbursed for the payments by the claimant.
The revisions are retroactive, 1999 Montana Laws, ch. 442, ยง 31(1), and neither party contests the jurisdiction of the Court to make a de novo determination of claimant's entitlement to benefits under the section.
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