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Polk v. Planet Insurance Company5/31/2002
AMENDED ORDER ON APPEAL
This Court previously entered its Order on Appeal, reversing the Department's 20% reduction of benefits and its award of attorney fees. Following entry of the Order, Planet Insurance Company (Planet) moved the Court for a further, nunc pro tunc, order reversing the Department's award of costs. After reviewing the request I determined that I had wholly overlooked the costs issue, which was raised by Planet's cross-appeal. I therefore stayed certification of the Order on Appeal and requested further briefing. (Order Staying Certification of Judgment.) I also noted that in its prior brief in opposition to Planet's costs argument, claimant had challenged the constitutionality of the Occupational Disease Act's provision governing an award of costs. I therefore ordered that notice of the constitutional challenge be given to the Attorney General and that the parties further brief the constitutional issue.
Discussion
I.
Initially, Planet objects to the Court's consideration of the constitutional issue because notice was not previously given to the Attorney General. It cites Rule 24(d), Mont. R.Civ.P. as authority.
Rule 24(d) has never been formally adopted by this Court. While the Workers' Compensation Court may look to the Montana Rules of Civil Procedure for guidance in procedural matters which are not encompassed in its own rules, Murer v. Montana State Compensation Mut. Ins. Fund, 257 Mont. 434, 436, 849 P.2d 1036, 1037 (1993), it is not required to do so in every instance.
Rule 24(d) requires the party raising the constitutional issue to provide the Attorney General with contemporaneous notice of the challenge. However, as I noted in my Order Staying Certification of Judgment, this Court in recent years has taken on the responsibility of notifying the Attorney General of constitutional challenges. Indeed, following issuance of the Order, the Court provided the Attorney General with such notice and invited him to intervene. He declined to do so. (Notice of Intent Not to Intervene (received December 3, 2001).)
Planet's objection is overruled.
II.
The provision governing costs is the same provision which governs attorney fees. Section 39-72-613, MCA (1993), provides:
39-72-613. Costs and attorney fees. (1) If an insurer requests that a hearing be held before the department and the claim is determined compensable by the department after the hearing and the insurer does not appeal the department's decision to the workers' compensation judge, reasonable costs and attorney fees, as determined by the department, shall be paid to the claimant's attorney by the insurer.
(2) If an insurer appeals a decision of the department to the workers' compensation judge or from the judge to the supreme court and the claim is determined compensable, reasonable costs and attorney fees, as determined by the workers' compensation judge, shall be paid to the claimant's attorney by the insurer for proceedings before the department, the workers' compensation judge, and the supreme court.
I considered this section in my prior Order on Appeal, holding that the claimant is not entitled to attorney fees under the section since the insurer did not initiate the proceeding before the Department and did not appeal the Department's decision concerning liability. Since the section governs both "reasonable costs and attorney fees," the same holding applies to an award of costs. By implication, section 39-72-613, MCA, precludes an award under other circumstances. State ex rel. Jones v. Giles, 168 Mont. 130, 133, 541 P.2D 355, 357 (1975)("In determining legis
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