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Colmore v. Uninsured Employers' Fund9/22/2005
ith this Court. Joseph Eve & Co., 284 Mont. at 512, 945 P.2d at 897. By then the fourteen-day time limit in which to file a cross-appeal had expired. Joseph Eve & Co., 284 Mont. at 512, 945 P.2d at 897-98. In Joseph Eve & Co., there was an issue of law from which to cross-appeal--the finality of the trial court's judgment. There was a "dispute." In the case sub judice there was no issue of law from which to cross-appeal, only a mutual mistake of fact, acknowledged by all parties, that was just as capable of ministerial correction as it had been made, ministerially, in the first place. The Court's conclusion to the contrary, Mrs. Forgey had no "duty" to appeal until she had a "dispute" with the UEF's decision.
Conclusion
As noted above, § 39-71-105(1), MCA (1999), provides that the objective of the workers' compensation system is to provide wage loss benefits that bear a reasonable relationship to actual wages lost as a result of a work-related injury . Under the law, Mrs. Forgey was and is entitled to benefits based on an average weekly wage of $443.00. In its decision here, the Court has handed the uninsured employer a windfall, denied a widow the benefits to which she is entitled under the law, and, in misapplying the law, has frustrated the public policy of this State as articulated by the legislature. This is accomplished in part by the use of a newly created "right to rely" on UEF miscalculations which is unsupported by legal precedent, a wholly irrelevant "ordinary diligence" standard, and a plain misrepresentation of Mrs. Forgey's argument on appeal.
I dissent.
JAMES C. NELSON
Justice Patricia O. Cotter joins in the concurrence and dissent of Justice James C. Nelson.
PATRICIA O. COTTER
Justice Morris concurs and dissents.
I concur with our decision as to Issue One and dissent to our resolution of Issue Two for the following reasons. I would affirm the Workers' Compensation Court as to both issues.
The Court's opinion today fails to give proper effect to legislative will, culminates in an absurd result, and deprives the statutory scheme of its intended purpose. State v. Heath, 2004 MT 126, 24, 321 Mont. 280, 24, 90 P.3d 426, 24. The Court's interpretation of § 39-71-520, MCA (1999), disregards the plain meaning of the term "dispute" and further frustrates the legislative purpose that permits the parties to appeal a contention regarding benefits. Weber v. Interbel Telephone Co-Op., Inc., 2003 MT 320, 10, 318 Mont. 295, 10, 80 P.3d 88, 10 (construing statutory language according to its plain meaning and giving effect to the legislative intent from the text of the statute). The Court's opinion also harvests an absurd result where UEF remains unable to make a remedial calculation to its own benefits computation and thereby denies the beneficiary the full extent of the statutorily enumerated benefits. Finally, the Court's decision defeats the intended purpose of § 39-71-105, MCA (1999), to diminish a claimant's reliance upon lawyers and expeditiously obtain benefits for him or herself. Section 39-71-105(3), MCA (1999).
I respectfully dissent from the Court's resolution of Issue Two.
BRIAN MORRIS
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