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Colmore v. Uninsured Employers' Fund9/22/2005
yers' fund benefits must be appealed to mediation within 90 days from the date of the determination or the determination is considered final." As stated in the UEF's letter to Mrs. Forgey--written in less "legalese" than the statute--any disagreement with determinations or calculations contained in the UEF's decision must be raised within 90 days and, absent objection within that time, the UEF's determination is final.
The statute clearly constitutes a 90-day statute of limitations for a claimant seeking further action on a UEF determination. Whether we focus on the word "dispute," used in § 39-71-520, MCA (1999)--as relied on by the dissent--or the phrase "disagreement with determinations or calculations"--contained in the UEF's letter--Mrs. Forgey had 90 days to review the UEF's calculations and, if she disputed or disagreed with them, seek her statutory remedy. She did not so do. On that basis, I join the Court in concluding that no issue regarding the UEF's calculation of the benefits to which Mrs. Forgey was entitled survived the 90-day period of limitations.
Moreover, it is my view that our recent decision in Hand v. UEF, 2004 MT 336, 324 Mont. 196, 103 P.3d 994, is analogous. There, the claimant filed a claim for benefits under the Occupational Disease Act (Act). At some subsequent time, the Department of Labor and Industry (Department) entered an Order of Determination finding that the claimant had an occupational disease and was entitled to certain benefits under the Act. The claimant appealed pursuant to § 39-72-612, MCA (1997), which provided a 20-day limit for appeal--absent which the Order would become final--and the case continued to the WCC. The UEF did not appeal from the Department's Order, but attempted to have portions of it reviewed and changed in the WCC. See Hand, 8, 11, 12.
Notwithstanding the 20-day limit to appeal the Department's Order contained in § 39-72-612, MCA (1997), the WCC allowed the UEF to raise substantive affirmative defenses. On appeal, we concluded the UEF lost its opportunity to have the Department's findings and conclusions reviewed by failing to timely perfect its appeal from the Department's Order of Determination, and that the Order had become final as to the UEF after the 20-day limitations period. See Hand, 27.
Pursuant to our reasoning in Hand, Mrs. Forgey is as barred in the present case from late-raising issues that became final 90 days after the UEF's determination as the UEF was barred in Hand. All of us no doubt have sympathies to Mrs. Forgey's plight; however, it is our obligation to apply the law as it is written and to do so evenhandedly. In both Hand and the present case, one party timely "appealed" and one party did not. The result in both cases must be the same.
On this latter point, applying the law as written, the dissent repeatedly suggests that the Court has failed to set forth the applicable rules of statutory construction. There is some truth here. At least as important, however, is the dissent's purported reliance, in 77, on the "plain meaning" rule, and its own interpretations of § 39-71-520, MCA (1999).
I agree generally with the definitions of "dispute" and related terms advanced by the dissent. One could hardly disagree that Black's Law Dictionary contains these definitions.
From these undisputed--at least by me--definitions, however, the dissent travels to several very interesting places. It states without equivocation--and also without authority--that a dispute cannot exist unless it is expressed. Thus, no expression of dispute equals no dispute. This is a sympathetic interpretation in the present case. The plain words used in the statu
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