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Smith v. State Compensation Fund2/17/2000
follows:
Based on the information provided, the Department concludes it should deny the claimant's request to invoke the provisions of section 39-71-610, MCA, because all benefits were paid under 39-71-608, MCA, Reservation of Rights. The Department does not have jurisdiction to extend benefits when they are paid under 39-71-608, MCA. (February 4, 2000 Order .) The Court is operating under the same statute as the Department, thus it would be precluded from ordering benefits if the Department is correct in its analysis.
I have previously set out, verbatim, the statute in question, both in its 1997 and 1999 forms. The statute does not preclude interim benefits where benefits were being paid under a reservation of rights. It requires only that (1) some sort of benefits were paid, (2) those benefits were then terminated, and (3) the claimant disputes the termination of benefits. All three of those criteria are met. I therefore conclude that interim benefits under the section are not precluded by the fact that the benefits were paid under a reservation of rights.
That does not mean, however, that the reservation of rights is wholly irrelevant to the inquiry under section 39-71-610, MCA, or that claimant is entitled, as a matter of right, to 610 benefits. Section 39-71-610, MCA, provides that the Department "may" order additional benefits. If the legislature intended the award to be non-discretionary it could have simply directed the insurer to continue benefits for an additional 49 days whenever a claimant disputes termination of benefits. Moreover, the statute does not require 49 days of benefits, it merely established 49 days as the maximum duration of any benefits ordered under the section.
The more difficult question is what factors must the Department, and ultimately the Court, consider in determining whether to exercise its discretion in favor of the petitioning claimant. The section provides no guidance, however, common sense and experience suggest that the decision must be guided by facts and circumstances of the particular case. In an accepted liability case where benefits have been paid for a lengthy period of time, where the claimant will suffer severe financial hardship from any interruption of benefits, and where the claimant has, at least at first glance, a strong prima facie case for reinstatement of benefits, an order for benefits under section 39-71-610, MCA, will likely be entered. On the other hand, in a case of contested liability where there is an absolute defense of likely merit, where the case for reinstatement of benefits is facially weak, or where little financial hardship will result, the facts may preponderate against an order for benefits.
In this case there are numerous factors cutting against claimant's request. This is not an accepted liability case. As noted earlier, that in and of itself is not determinative.
However, the claimant's own facts show that as of this time his claim is barred by the one- year filing requirement. Unless he can persuade the Court to waive the one-year requirement, he will not be entitled to any benefits. His case for waiving the one-year filing requirement is not at first glance overpowering. In his affidavit he states that " t the time of the [May 1, 1998] incident, I experienced temporary symptoms such as numbness . . . ." Whether he can persuade the Court that his injury was nonetheless latent, as he claims, is at least reasonably debatable. As to his suggestion that he was discouraged from filing a claim, which if true may give rise to an estoppel, the fact that he filed claims for an industrial accident occurring 11 days prior to the injury at issue here and for another acc
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