ARM 24.28.108

Hall v. New Hampshire Ins. Co. [07/12/16] 2016 MTWCC 10 For ARM 24.28.108(2) to apply to a case in which the parties agreed to postpone the issuance of the mediator’s Report and Recommendation, a party must prove that the mediator failed to comply with the deadline. Where this Court has no dates from which to determine when the mediator received all of the additional information needed to remove the case from its pending status, this Court cannot conclude that the mediator failed to comply with the deadline set forth in ARM 24.28.108(2).

Nelson v. State Compensation Insurance Fund [4/4/96] 1996 MTWCC 29 Although respondent moved to dismiss petition for failure to mediate, affidavit from claimant’s counsel indicated that two mediation conferences were held, but no mediation report issued where respondent had asked for additional medical information, which claimant cooperated in allowing respondent to obtain. Although section 39-71-2411(5), MCA (1995) and ARM 24.28.108(2), require that a mediation report issue within ten days, there are provisions for postponement, but not unilateral postponement. The parties are directed to contact the mediator and request that a report issue forthwith. They should provide any additional information they wish to provide to the mediator.

ARM 24.29.720

McLaughlin v. Liberty NW Ins. Corp. [12/9/03] 2003 MTWCC 69 Where claimant was receiving $14 an hour and $5 of that amount was characterized as travel reimbursement, the $5 cannot be excluded in computing his wages where he would have received the same $14 an hour even if he had not agreed to characterizing part of the compensation as travel pay. To be excludable travel pay, the amount must not replace the employee's customary wage. ARM 24.29.720(1)(d).

McLaughlin v. Liberty NW Ins. Corp. [12/9/03] 2003 MTWCC 69 To be excludable from wages used for purposes of determining workers' compensation benefits, employee travel reimbursement must approximate the employee's actual travel expenses and be calculated using one of the methods approved by the Department of Labor and Industry in ARM 24.29.720(2).

Timothy Lindskog vs. State Compensation Insurance Fund [9/13/00] 2000 MTWCC 61 Applying ARM 24.29.720, $7 per week added to wage rate where employer paid flat rate for meals $1 in excess of rate paid to state employees.

Pittsley v. State Fund [7/31/98] 1998 MTWCC 61A Administrative rule adopted by DOL to specify employee expenses which are not wages was by its own terms effective only commencing January 1, 1993. Where sawyer's injury, and the relevant four pay periods preceding injury, occurred before the rule's effective date, the rule's specification that rental value of timber falling equipment not exceeding $22.50 per day could be excluded from wage rate was not applicable to computation of his wage rate.

ARM 24.29.804

Gregg Thompson v. CIGNA [12/8/00] 2000 MT 306 Insurer's several-month delay in responding to attorney seeking lump sum payment of claimant's future entitlement to PTD benefits, resulting from insurer's violation of ARM 24.29.804 requiring workers' compensation insurers to designate an in-state adjuster with authority to settle claims, was unreasonable, but did not give rise to penalty under section 39-71-2907, MCA (1981) where lump-sum payment was not benefit due and payable prior to approval by the Department of Labor

ARM 24.29.2003

Messitte v. Liberty Mutual Fire Ins. [8/30/01] 2001 MTWCC 51 Claimant suffering from muscle ailment beginning with lifting heavy items during waitressing work ten years prior was not entitled to massage and health club membership under treating physician's recommendations. Under treating physician's testimony, the massage and exercise would constitute maintenance which is not compensable under the regulations. ARM 24.29.2003 and .2004.

ARM 24.29.2004

Messitte v. Liberty Mutual Fire Ins. [8/30/01] 2001 MTWCC 51 Claimant suffering from muscle ailment beginning with lifting heavy items during waitressing work ten years prior was not entitled to massage and health club membership under treating physician's recommendations. Under treating physician's testimony, the massage and exercise would constitute maintenance which is not compensable under the regulations. ARM 24.29.2003 and .2004

ARM 24.29.3082

Montana Supreme Court Decisions:

Pinnow v. Montana State Fund, 2007 MT 332, 340 Mont. 217, 172 P.3d 1273 An administrative agency does not have the power to create or divest a court of subject matter jurisdiction, and the Legislature has provided that the Department of Labor and Industry shall not make rules or otherwise control the Workers’ Compensation Court. Thus, to the extent that ARM 24.29.3802(9) attempts of its own accord to divest the Workers’ Compensation Court of jurisdiction over a dispute between any claimant and an attorney relative to attorney’s fees in a workers’ compensation claim, the provision is ineffective.

Montana Workers' Compensation Court Decisions:

Dixon v. State Fund [7/26/01] 2001 MTWCC 40 The $75 hourly rate set in ARM 24.29.3802 for attorneys handling workers' compensation claims on an hourly rate basis is an appropriate rate of compensation for attorneys acting as guardians ad litem in workers' compensation proceedings.

Ingebretson v. Louisiana Pacific Corp. [11/06/95] 1995 MTWCC 92 Where ARM 24.29.3802(2) provides that an attorney representing a workers’ compensation claimant shall submit a written attorney fee agreement to the DOL “within thirty days of undertaking representation of the claimant,” no recovery is allowed for work performed more than 30 days prior to execution and submission of the fee agreement.

ARM 24.5.301

Morse v. Liberty Northwest Ins. Corp. [05/03/12] 2012 MTWCC 16 The Court held that although the insurer characterized its relationship with its insured as a “complete disconnect,” ARM 24.5.301(4) states that it should not be construed as relieving any employer from its duty to cooperate and assist its insurer; this Court previously rejected an insurer’s argument that it did not have access to its insured’s files to answer discovery; and § 39-71-2203(1)(a), MCA, imputes an employer’s knowledge to the insurer. By accepting the responsibility for injury reporting and claims filing, Petitioner’s employer stood in the place of Respondent insurer in dealing with injured workers and acted as Respondent’s agent.

Cissell v. Employers Compensation Ins. Co. [04/18/12] 2012 MTWCC 12 There is an agency relationship between the insurer and the TPA, and any rights and liabilities within the authority of the TPA accrue to the insurer as the principal, including those John Does named by Petitioner who worked on her claim. Since the insurer is already properly named as a respondent, there is no reason to name such entities or persons as parties in addition to the insurer. Petitioner shall file an amended petition to reflect the insurer as the only respondent.

Cissell v. Employers Compensation Ins. Co. [04/18/12] 2012 MTWCC 12 The Petitioner named Brentwood Services as a Respondent. Brentwood adjusted Petitioner’s claim on behalf of the insurer as a third-party administrator (TPA). As this Court has previously held, a TPA will not be named in the caption of a workers’ compensation case as a matter of course, absent a compelling reason for doing so.

Flynn and Miller v. Montana State Fund [07/14/10] 2010 MTWCC 26 ARM 24.5.301(3) requires any penalty or attorney fee claims to be joined and pleaded in the petition. Here, Petitioners asserted that they could not have claimed attorney fees and a penalty sooner because the insurers’ allegedly unreasonable actions only arose recently in the course of the litigation. Because Petitioners’ motion was filed in accordance with Court deadlines and because Respondents provided no basis for denying the requested amendment, the Court granted Petitioners’ motion to amend their petition.

Charlson v. Montana State Fund [07/01/10] 2010 MTWCC 23 Respondent attempted to subvert the procedure specified in ARM 24.5.301(3) by moving to dismiss Petitioner’s claim for attorney fees and penalty, alleging that no evidence indicated that Respondent acted unreasonably in the adjustment of Petitioner’s claim. Respondent suggested that if Petitioner learned through discovery that Respondent unreasonably denied his claim, Petitioner could amend his petition to reinstate the claims. The Court denied Respondent’s motion, noting that both the parties and the Court are better served by following the procedure established by the Court’s rules and scheduling order.

Ivie v. MUS Self Funded Workers' Compensation Program [06/09/10] 2010 MTWCC 15 Although ARM 24.5.301 does not prohibit naming a third-party claims administrator as a party in a workers’ compensation benefit dispute, it does not necessarily follow that the Court should allow parties other than the insurer to be named in the caption absent a compelling reason for doing so. The Court will not exercise jurisdiction over a party that is not necessary to the resolution of a dispute simply because it can.

Ivie v. MUS Self Funded Workers' Compensation Program [06/09/10] 2010 MTWCC 15 Although the claimant argued that a third-party claims administrator was a proper party to his suit because he has a claim against the administrator for benefits, attorney fees, and a penalty, the WCA establishes that liability for these things lies with the insurer and not the third-party administrator. Therefore, the claimant’s dispute lies with the insurer and there is no dispute with the administrator to adjudicate.

Baker v. Transportation Ins. Co. [02/01/07] 2007 MTWCC 6 It would make little sense for this Court to require Petitioner to attempt to resolve a dispute concerning medical benefits when the entire claim was denied based on an ostensible running of the statute of limitations. It would have been futile for Petitioner to attempt any further piecemeal resolution of the claim after the claim was denied in its entirety based on a statute of limitations. Courts do not require exhaustion of administrative remedies when doing so would be futile. Mountain Water Co. v. Montana Dept. of Pub. Serv. Regulation, 2005 MT 84, 326 Mont. 416, 420, 110 P.3d 20, 22.

ARM 24.5.302

Kratovil v. Liberty Northwest Ins. Corp. [09/07/07] 2007 MTWCC 38 While Mont.R.Civ.P. 8( c) provides that a statute of limitations defense must be pled as an affirmative defense, ARM 24.5.302(1)(a) requires a respondent to set out its contentions in its response, and therefore the Court will not consider a statute of limitations defense if it is not listed in the contentions.

ARM 24.5.303

• 1-2-101, MCA

• 1-2-107, MCA
• 1-2-201, MCA

• 2-4-102, MCA

• 2-4-501, MCA

Montana Rules of Civil Procedure - by section

Montana Rules of Civil Procedure - by section

Montana Rules of Evidence

MONTANA RULES OF PROFESSIONAL CONDUCT

MONTANA STATE CONSTITUTION

UNITED STATES CONSTITUTION

Rule 24.5.101 Organizational Rule

Rule 24.5.301 Petition for Trial

24.5.302 Response to Petition

24.5.303 Service and Computation of Time

24.5.304 Alternative Pleading (repealed)

24.5.305 Nature of Rules

24.5.306 Brevity in Pleadings and Form of Paper Presented for Filing

24.5.307 Third-Party Practice

24.5.307A Joinder and Service of Alleged Uninsured Employers

24.5.308 Joining Third Parties

24.5.309 Intervention