|
IN THE WORKERS' COMPENSATION
COURT OF THE STATE OF MONTANA
1996
MTWCC 59
WCC No. 9606-7558
MARGARET
EPPERSON
Appellant
vs.
WILLIS
CORROON ADMINISTRATIVE SERVICE CORPORATION
Respondent.
ORDER ON
APPEAL
Summary: Appellant
sought occupational disease benefits and was referred to a medical examination,
which found her not to suffer from an OD. The Department of Labor duly
issued an order of determination denying her claim. Although the order
stated she must request a hearing within 20 days, she did not. She later
requested a hearing, which was dismissed by the DOL as untimely. She appealed
to the Workers' Compensation Court.
Held:
While section 39-72-612(1), MCA, requires appeal within 20 days, the 20-day
period does not commence to run until expiration of the time for administrative
review of the determination, which is ninety days under ARM 24.29.215(1).
Until that period has run, the order is not final. Claimant's appeal was
filed within ninety days of the initial order and is hence timely. (Note:
WCC affirmed in Epperson v. Willis Corroon Administrative Services Corporation,
281 Mont. 373, 934 P.2d 1034 (1997) (No. 96-610).)
Topics:
Appeals
(To Workers' Compensation Court): Timeliness. Occupational disease
claimant's appeal of "order of determination" denying her
occupational disease claim was timely, even though not filed within
20 days after "order of determination." While section 39-72-612(1),
MCA, requires appeal within 20 days, the 20-day period does not commence
to run until expiration of the time for administrative review of the
determination, which is ninety days under ARM 24.29.215(1). Claimant's
appeal was filed within ninety days of the initial order and is hence
timely. (Note: WCC affirmed in Epperson v. Willis Corroon Administrative
Services Corporation, 281 Mont. 373, 934 P.2d 1034 (1997) (No. 96-610).)
This is an appeal from a
Department of Labor and Industry (Department) decision dismissing the
appellant's request for hearing in an occupational disease case.
The relevant facts are straightforward.
On September 26, 1995, the appellant, Margaret Epperson (claimant),
submitted to a medical examination by Dr. J. Michael Sadaj to determine
if she suffered from an occupational disease. Dr. Sadaj was designated
by the Department to perform the examination and submitted a report
of his findings to the Department. On November 1, 1995, the Department
issued an Order Referring Copy of Medical Reports to Parties. The order
indicated that based on Dr. Sadaj's report claimant's occupational disease
claim "would be denied" but notified her of her right to a second examination.
(Appellant's Brief Ex. C.)
Claimant did not request
a second examination and on November 27, 1995, the Employment Relations
Division (ERD) issued an Order of Determination denying her claim. The
order further notified claimant of a right to request a hearing within
20 days of the order, stating:
Pursuant
to 39-72-612, MCA, the parties are hereby notified a party adversely
affected by this Order of Determination has twenty (20) days from the
date of this Order to request a hearing before the Department of Labor
& Industry Legal Division.
(Appellant's Brief Ex. D.)
Finally, the order stated that lacking a request for a hearing the order
would become final.
Claimant did not request
a hearing within 20 days. However, thereafter on January 30, 1996, the
claimant, through counsel, requested a hearing. The insurer moved to
dismiss the request as untimely and on May 31, 1996, a Department hearing
officer issued a Ruling on Insurer's Motion to Dismiss finding that
the request for hearing was in fact untimely. He dismissed the case.
This appeal followed.
On appeal, the claimant
argues that the dismissal of her request for a hearing was in violation
of the applicable statutes and Department regulations; was made upon
unlawful procedures; was affected by an error of law; and was clearly
erroneous in view of the reliable, probative and substantial evidence
on the whole record. (Appeal from Ruling on Insurer's Motion to Dismiss.)
While the final ground appears to raise factual issues, the claimant's
arguments are legal ones questioning the legal correctness of the Department's
decision. The decision will therefore be reviewed to determine if it
is correct. Steer, Inc., v. Dep't of Revenue of the State of Mont.,
245 Mont. 470, 803 P.2d 601 (1990).
Discussion
The time for requesting
a Departmental hearing in an occupation disease case is prescribed by
section 39-72-612, MCA, (1989) which provides:
39-72-612.
Hearing and appeal to workers' compensation judge. (1)
Within 20 days after the department has issued its order of determination
as to whether the claimant is entitled to benefits under this chapter,
a party may request a hearing. In order to perfect an appeal to the
workers' compensation judge, the appealing party shall request a hearing
before the department. The department shall grant a hearing, and the
department's final determination may not be issued until after the hearing.
(2) Appeals
from a final determination of the department must be made to the workers'
compensation judge within 30 days after the department has issued its
final determination. The judge, after a hearing held pursuant to 39-71-2903
and 39-71-2904, shall make a final determination concerning the claimant's
claim. The judge may overrule the department only on the basis that
the department's determination is:
(a) in
violation of constitutional or statutory provisions;
(b) in
excess of the statutory authority of the agency;
(c) made
upon unlawful procedure;
(d) affected
by other error of law;
(e) clearly
erroneous in view of the reliable, probative, and substantial evidence
on the whole record; or
(f) arbitrary
or capricious or characterized by abuse of discretion or clearly unwarranted
exercise of discretion. [Emphasis added.]
The section specifically
fixes the time in which to request a hearing. An untimely request must
be dismissed. Cf. First Security Bank of Havre v. Harmon, 255
Mont. 168, 172, 841 P.2d 521, 523 (1992) (Time limits fixed for appeal
are mandatory and jurisdictional and failure to perfect an appeal within
the time allowed requires dismissal of the appeal).
Claimant, however, seeks
to avoid the harsh consequence of the statute by arguing that a regulation
of the Department provides a separate, longer period for making her
request. She relies on ARM 24.29.215(2) (1987), which provides:
(2) A party
seeking a contested case hearing under ARM 24.29.207 must make a written
request to the division [Department(1)]
for a contested case hearing within thirty days of notice of the results
of an administrative review or within ninety days of notice of adverse
action. [Emphasis added.]
She requests that the longer,
90-day appeal period mentioned by the rule should be applied.
Initially, a reading of
the Department's regulation supports claimant's interpretation of ARM
24.29.215(2) as applying to occupational disease cases, as well as to
workers' compensation cases. ARM 24.29.207, to which the former rule
refers, expressly extends to occupational disease hearings. ARM 24.29.207(4)
(1983) provides:
(4) A contested
case under Title 39, chapters 72 or 73 . . . is administered
by the workers' compensation division in accordance with 24.29.207(6).
[Emphasis added.]
The ODA, of course, is found
in chapter 72 of Title 39. ARM 24.29.207(6), mentioned in subsection
(4), merely provides that the Attorney General's model procedural rules
regarding contested case hearings shall apply to Department proceedings.
Thus, claimant has properly read ARM 24.29.215(2) (1987) as affording
her 90 days in which to file her request for hearing.
The Department, however,
cannot adopt regulations contrary to or conflicting with an express
statute, Bick v. Montana Department of Justice, 224 Mont. 455,
457, 730 P.2d 418, 420 (1986), and any such regulation is void,
Michels v. Department of Social and Rehabilitation Services, 187
Mont. 173, 177, 609 P.2d 271, 273 (1980). Thus, the 20-day limit prescribed
by section 39-72-612, MCA, is applicable in this case. The Department's
longer, 90-day rule, as it applies to an occupational disease determination,
is void.
The claimant does not argue,
or provide the Court with facts supporting an argument that the Department
is estopped by its rule from relying on the statutes. Estoppel requires
proof of reliance on the rule, and none is shown. Mellem v. Kalispell
Laundry, 237 Mont. 439, 774 P.2d 390 (1989).
She does contend, however,
that the Department and the insurer should be estopped from imposing
the statutory limitation because the Department failed to furnish her
with the Department's letter to Dr. Sadaj. A copy of the letter is set
forth in the appendix and asks the doctor to first determine if claimant
is suffering from an occupational disease. If he so determined, then
he was to determine whether the disease was proximately caused by her
employment. If both of those questions were answered in the affirmative,
then the letter asked a number of additional questions. Claimant asserts
that the doctor failed to comply with the letter and that because the
Department failed to furnish her a copy of the letter she was unaware
of that fact and could not have known whether she had grounds to request
a hearing. Hence, she argues, the Department deprived her of essential
information and should be estopped.
Estoppel requires proof
of six elements, as follows:
"1. There must be conduct
-- acts, language, or silence -- amounting to a representation or
a concealment of material facts. 2. These facts must be known to the
party estopped at the time of his said conduct, or at least the circumstances
must be such that knowledge of them is necessarily imputed to him.
3. The truth concerning these facts must be unknown to the other party
claiming the benefit of the estoppel, at the time when it was acted
upon by him. 4. The conduct must be done with the intention, or at
least with the expectation, that it will be acted upon by the other
party, or under such circumstances that it is both natural and probable
that it will be so acted upon . . . . 5. The conduct must be relied
upon by the other party, and, thus relying, he must be led to act
upon it. 6. He must in fact act upon it in such a manner as to change
his position for the worse . . . ."
Davis,
661 P.2d at 861 (quoting Lindbolm v. Employers' Liability Assurance
Corp. (1930), 88 Mont. 488, 494, 795 P.1007, 1009).
Mellem at 442, 774
P.2d at 392.
The difficulty with claimant's
position is that unless Dr. Sadaj found that she suffered from an occupational
disease, none of the following questions were applicable. Claimant was
aware of the first question put to the doctor since the very purpose
of the examination was to determine whether she suffered from an occupational
disease. Dr. Sadaj did not so find, thus there was no reason for him
to respond to the remaining questions. The real deficiency in the process
was the failure of the Department to follow up on Dr. Sadaj's recommendation
for further testing, but that deficiency was apparent from the face
of the doctor's report and the Department's Order Referring Copy of
Medical Reports to Parties. Since claimant was aware of the general
purpose of Dr. Sadaj's examination, and that general purpose was reflected
in the first question of the Department's letter, and since the remaining
questions were not material, the claimant has failed to satisfy the
first element of estoppel.
Nonetheless, I find that
the claimant's appeal was timely and that the hearing officer erred
in dismissing claimant's request for hearing. The Department's November
27, 1995 order in this case was not an order of determination within
the meaning of section 39-72-612, MCA. The section refers to the Department
and "its order of determination." The quoted section connotes
finality, with a hearing as the next recourse. The order contemplated
by the section is the last and final order issued by
the Department without hearing, and not some initial
or non-final order.
A review of Department regulations
shows that ERD's November 27, 1995 Order of Determination was not
a final order and was subject to further review and modification by
the Department without hearing. As quoted above, ARM 24.29.215(2) refers
to administrative review and sets a time limit for requesting a hearing
following administrative review. "Administrative review" is an informal
review of "any division [Department] order" by the Commissioner of Labor
or her designee and is governed by ARM 24.29.206 (1983). ARM 24.29.205(5)
(1983) provides that "[a]ny division [Department] order may be appealed
for administrative review." It goes on to provide that "any party may
first seek administrative review of an order, prior to a contested case
hearing without affecting that party's statutory remedies." After review,
the Commissioner of Labor may "rescind, alter or amend" the order. ARM
24.29.206(5) (1983). Thus, a Department order becomes final only after
the Commission has completed her administrative review or after
the time for seeking such review expires. The time for seeking
administrative review is 90 days. ARM 24.29.215(1).(2)
In this case the claimant
filed her request for hearing prior to the expiration of the 90-day
period in which she could have sought administrative review. The request
for hearing amounted to a waiver of her right to an administrative review
and the ERD order became final upon that waiver.(3)
Thus, the order became final on January 30, 1996, and claimant's appeal
was timely under section 39-72-612, MCA, since it was filed that same
day.
ORDER AND JUDGMENT
IT IS HEREBY ORDERED AND
ADJUDGED that the Ruling on Insurer's Motion to Dismiss is reversed
and this matter is remanded for a hearing
on the merits.
This ORDER AND JUDGMENT
is certified as final for purposes of appeal to the Montana Supreme
Court.
DATED in Helena, Montana,
this 29th day of August, 1996.
(SEAL)
/s/ Mike
McCarter
JUDGE
c: Mr. Joe Seifert
Mr. Norman H. Grosfield
Ms. Christine L. Noland
Submitted: August 19, 1996
Appendix & Letter attached
APPENDIX
24.29.205
ISSUING DIVISION ORDERS (1) "Order" means any decision,
rule, direction, requirement, or standard of the division, or any other
determination arrived at or decision determining a person's opportunity
for benefits or to do business. All orders are in writing and signed
by a division official delegated with such authority in the division's
organizational rule or in writing by the administrator.
(2) An order
may issue solely as the result of action initiated by the division,
or the division's response to inquiries from the public; or
(3) An order
may issue as a result of division investigation, mandated statutorily;
or
(4) An order
may issue upon receipt of a petition. A condition precedent to the division
issuing an order in this situation is receipt of a petition which must
include:
(a) the name
and address of the petitioner;
(b) a detailed
statement of the facts upon which the petitioner requests the division
to issue an order; (c) the rule,
statute or case law under which the request for an order is made; and
(d) a short, plain statement
of petitioner's contentions based upon rule 24.29.205(4)(b) and (c).
(5) Any division order may be appealed for administrative review (see
rule 24.29.206), or if required statutorily, as a contested case (see
rule 24.29.207). However, any party may first seek administrative
review of an order, prior to a contested case hearing without affecting
that party's statutory remedies. [Effective 7/29/83.]
24.29.205 ISSUING
ORDERS (1) All orders issued pursuant to 39-71-116, MCA,
must be in writing and signed by a department employee.
(2) An order may
be issued:
(a) as a result of
action initiated by the department;
(b) as the department's
response to inquiries from the public;
(c) as a result of
department investigation, mandated statutorily; or
(d) upon receipt
of a petition.
(3) Any department
order may be appealed for administrative review (see ARM 24.29.206),
or if required statutorily, as a contested case (see ARM 24.29.207)
or considered as a mediation case (see ARM 24.28.101). Appeals can
be made to the workers' compensation court after prior statutory remedies
have been exhausted (see ARM 24.5.101). However, any party may first
seek administrative review of an order, prior to a contested case
hearing without affecting that party's statutory remedies.
(a) Before a party may request a contested case hearing on an order
which is issued by either the uninsured employers' fund or the underinsured
employers' fund and establishes only the amount of penalty owed and
no other issue, the party must first obtain an administrative review
of that order.
(b) Department determinations
rendered by the independent contractor central unit regarding employment
status issues are not considered department orders for purposes of
these rules. These determinations are issued pursuant to ARM Title
24, chapter 35, subchapters 2 and 3. [Effective 7/1/96.]
24.29.206 ADMINISTRATIVE
REVIEW (1) The workers' compensation division administrator
or his designee shall conduct an administrative review of any division
order construed by a party in interest to be adverse to his interest,
upon:
(a) receipt of a
petition for administrative review which must conform to the requirements
for petitions in rule 24.29.205; or
(b) receipt of a
petition for a contested case hearing and the parties' joint written
waiver of formal proceedings in accordance with 2-4-603, MCA.
(2) An administrative
review shall be conducted with the purpose of resolving the case and
avoiding an unnecessary hearing.
(3) An administrative
review caused by a petition pursuant to rule 24.29.206(1)(a) includes:
(a) at the discretion of
the party in interest, an informal conference with the division by
telephone or person-to-person at the division office in Helena; and
(b) a review by the administrator or his designee of all relevant
facts and applicable laws involved in the action by the division.
Such a review will not be subject to the rules of civil procedure
or evidence.
(4) An administrative review caused by a petition and waiver of formal
proceedings pursuant to rule 24.29.206(1)(b) must be conducted as
an informal proceeding in accordance with the provisions of section
2-4-604, MCA.
(5) The workers' compensation
division administrator may rescind, alter or amend any action at any
time during the administrative review, in which case a hearing will
not be held unless a party in interest does not concur with the order
and requests that the hearing be held. [Effective 7/29/83.]
24.29.206
ADMINISTRATIVE REVIEW (1) The department
shall conduct an administrative review of any department order, other
than employment status determinations referenced in ARM 24.29.205(4),
for the purpose of resolving the case and avoiding an unnecessary hearing,
upon:
(a) receipt
of a petition for administrative review which should contain:
(i) the name
and address of the petitioner;
(ii) a short,
plain statement of the petitioner's contentions; and
(iii) a statement
of the resolution the petitioner is seeking; or
(b) receipt
of a written mutual request by all of the parties to the dispute to
agree to waive the formal contested case proceedings until an administrative
review is conducted in accordance with 2-4-603, MCA.
(2) An administrative
review caused by a petition pursuant to ARM 24.29.206(1)(a) includes:
(a) at the
discretion of the petitioner, an informal conference with the department
by telephone or in person at the department office in Helena; and
(b) a review
by the department of all relevant facts and applicable laws involved
in the action by the department. Such a review is not subject to the
Rules of Civil Procedure or the Rules of Evidence.
(c) Upon
completion of the informal conference and review, the department shall
issue a notice to the parties in a timely manner.
(3) An administrative
review caused by a petition and waiver of formal proceedings pursuant
to ARM 24.29.206(1)(b) must be conducted as an informal proceeding in
accordance with the provisions of 2-4-604, MCA.<
(4) The department may
rescind, alter or amend any action at any time during the administrative
review, in which case a contested case hearing will not be held unless
a party does not concur with the notice and requests the hearing be
held. [Effective 7/1/96.]
24.29.207
CONTESTED CASES (1) A contested case under Title 39, chapter
71, MCA, involving a dispute by a claimant or an insurer concerning
any benefits provided under that chapter is administered in accordance
with rules authorized by the workers' compensation court under ARM Title
2, chapter 52, subchapter 2.
(2) A contested
case under Title 39, chapter 71, MCA, involving any disputed determination
of legal rights, duties or privileges other than those in rule 24.29.207(1)
or (3) is administered by the workers' compensation division in accordance
with rule 24.29.207(6). Such cases include but are not limited to:
(a) disputes
regarding attorneys' fee agreements in accordance with section 39-71-613,
MCA;
(b) disputes
regarding insurance premium payments to the state compensation insurance
fund;
(c) disputes
regarding state compensation insurance fund premium rates;
(d) disputes
regarding wage equivalency determinations made by the division;
(e) disputes
regarding applications of independent contractors not to be bound by
workers' compensation coverage pursuant to section 39-71-401, MCA;
(f) disputes
regarding applications by corporate officers not to be bound by workers'
compensation coverage pursuant to section 39-71-410, MCA;
(g) disputes
concerning certification of vocationally handicapped persons;
(h) disputes
concerning payment of benefits or liability involving the subsequent
injury fund;
(i) disputes
concerning payments to medical providers when benefits available directly
to claimants are not an issue.
(3) A contested
case under Title 39, chapter 71, MCA, concerning employment classifications
assigned to an employer by an insurer is administered by the classification
and rating committee in accordance with section 33-16-1012, MCA.
(4) A contested
case under Title 39, chapters 72 or 73, or Title 53, chapter 9, MCA,
is administered by the workers' compensation division in accordance
with 24.29.207(6).
(5) A contested
case under Title 50, chapters 71, 72, 73, 74 or 76 is administered by
the workers' compensation division in accordance with rule 24.29.207(6).
(6) The workers' compensation
division hereby adopts and incorporates by reference the attorney
general's model procedural rules 8 through 21 and 28 found in ARM
1.3.212 through 1.3.225 and in ARM 1.3.233, which set forth contested
case procedures for the division.
(7) The workers' compensation court is an appeal court for final decisions
made by the workers' compensation division pursuant to rule 24.29.207(2)
and (4). Final decisions pursuant to rule 24.29.207(5) are appealed
in accordance with Title 2, chapter 4, part 7, MCA. [Effective 7/29/83.]
24.29.207 CONTESTED
CASES (1) Parties having a dispute involving legal rights,
duties or privileges, other than disputes over benefits available
directly to a claimant under Title 39, chapters 71 and 72, MCA, must
bring the dispute to the department for a contested case hearing.
Such disputes include but are not limited to:
(a) disputes regarding
attorneys' fee agreements (39-71-613, MCA);
(b) disputes regarding
the value of work paid for in property other than money (39-71-303,
MCA);
(c) disputes regarding
applications for exemption of independent contractors and employment
status determinations (39-71-401, MCA);
(d) disputes regarding
certification as vocationally handicapped under Title 39, chapter
71, part 9, MCA;
(e) disputes regarding
payment of benefits or liability involving the subsequent injury fund;
(f) disputes regarding
payments to medical providers when benefits available directly to
claimants are not an issue (ARM 24.29.1404);
(g) disputes regarding
the waiver of the one year statute of limitations up to an additional
24 months (39-71-601, MCA);
(h) disputes regarding
the medical condition of a claimant when the department has been requested
to order an independent evaluation (39-71-605, MCA);
(i) disputes regarding
suspension of payments pending receipt of medical information (39-71-607,
MCA);
(j) disputes regarding
requests for orders requiring insurers to pay benefits pending a termination
hearing (39-71-610, MCA);
(k) disputes regarding
department orders concerning palliative or maintenance care under
39-71-704, MCA;
(l) disputes regarding
the renewal, revocation or suspension of certification as a managed
care organization (39-71-1103 and 39-71-1105, MCA);
(m) disputes regarding
applications to modify a managed care organization plan (39-71-1103
and 39-71-1105, MCA); and
(n) disputes regarding
department orders that determine occupational disease issues (Title
39, chapter 72, part 6, MCA).
(2) A contested case
concerning employment classifications assigned to an employer by an
insurer is administered by the classification review committee in
accordance with 33-16-1012, MCA.
(3) A contested case
under Title 39, chapters 71, 72 or 73, MCA, other than of the type
referenced in ARM 29.29.207(2), is administered by the department
in accordance with ARM 24.2.101 and 24.29.201(2).
(4) The workers'
compensation court is an appeal court for final orders, other than
employment status decisions, made by the department pursuant to ARM
24.29.207(1), (2) and (3). Final decisions regarding employment status
issues pursuant to ARM 24.29.207(1)(c) and ARM Title 24, chapter 35,
subchapters 2 and 3 are appealable to the board of labor appeals pursuant
to ARM 24.35.213. [Effective 7/1/96.]
24.29.215
TIME LIMITS (1) A party seeking administrative
review under ARM 24.29.206 must make a written request for administrative
review to the division within ninety days of notice of adverse action.
(2) A party
seeking a contested case hearing under ARM 24.29.207 must make a written
request to the division for a contested case hearing within thirty days
of notice of the results of an administrative review or within ninety
days of notice of adverse action.
(3) A party
seeking judicial review of a final order of the division after a contested
case hearing must file a petition with the workers' compensation court
within thirty days after notice of the final order.
(4) A party
is considered to have been given notice on the date a written notice
is personally delivered or three days after a written notice is mailed
to him. A request for administrative review, contested case hearing,
or judicial review must be received in the division or court within
the time limits set forth above. The time limits for request for administrative
review or contested case hearing may be extended by the division for
good cause. [Effective 7/31/87.]
24.29.215 TIME
LIMITS (1) A party seeking administrative review under
ARM 24.29.206 must make a written request for administrative review
to the department within 30 days of notice of adverse action.
(2) A party
seeking a contested case hearing under ARM 24.29.207 must make a written
request to the department for a contested case hearing within 10 days
of notice of the results of an administrative review or within 30 days
of notice of adverse action.
(3) A party
seeking judicial review of a final order of the department after a contested
case hearing must file a petition with the workers' compensation court
within 30 days after notice of the final order.
(4) A party
is considered to have been given notice on the date a written notice
is personally delivered or 3 days after a written notice is mailed.
A request for administrative review, contested case hearing or judicial
review must be received in the department or court within the time limits
set forth above. The time limits for request for administrative review
or contested case hearing may be extended by the department for good
cause. [Effective 7/1/96.]
1. The
rule refers to the old "Division of Workers' Compensation." Under 1987
legislation the Division was superseded by the Department. As of June
30, 1996, the Department revised the rules cited herein to reflect that
change. However, the substantive parts of the rules relied on in this
decision are unchanged. The old rules and the recently amended rules
are attached to this decision as an appendix.
2. ARM
24.29.215(1) (1987) provides:
(1) A party
seeking administrative review under ARM 24.29.206 must make a written
request for administrative review to the division [Department] within
ninety days of notice of adverse action.
3. An
administrative review may still be requested after the request
for hearing but both parties have to concur in the request. ARM
24.29.206(1)(b). Thus, claimant's request for hearing amounted to a
waiver of her right to unilaterally request administrative review.
|
