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No.

92-259

IN THE SUPREME COURT OF THE STATE OF MONTANA
1992

NONA BUECHLER GIBSON, Claimant and Respondent,

STATE COMPENSATION MUTUAL INSURANCE FUND, Respondent and Appellant.

APPEAL FROM:

The Workers' Compensation Court, The Honorable Timothy W. Reardon, Judge presiding.

COUNSEL OF RECORD: For Appellant: Elizabeth A. Horsman-Wiitala, Legal Counsel, State Compensation Mutual Insurance Fund, Helena, Montana For Respondent: Paul E. Toennis, Toennis Law Office, Billings, Montana; Melanie Symons, Legal Services Division, Department of Labor, Helena, Montana

Submitted on Briefs: Decided:

August 1, 1 9 9 2
November 24, 1992

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Clerk

Justice William E. Hunt, Sr., delivered the opinion of the Court. Appellant, State Compensation Mutual Insurance Fund (State Fund), appeals from an adverse decision rendered by the Workers' Compensation Court. We affirm.

The only issue before this Court is whether the Workers' Compensation Court erred in determining that 5 39-71-1033, MCA (1989), provides an independent right to pursue a contested case hearing before the Department of Labor and Industry (Department), when a claimant has failed to timely request a hearing pursuant to
5 39-71-1018, MCA (1989).

Claimant Nona Buechler Gibson was injured while working as a nurses' aide on October 10, 1989. Claimant's employer was insured for workers' compensation coverage by the State Fund. The State

Fund accepted liability and paid benefits from October 25, 1989, until July 2, 1991. In April 1991, the State Fund requested a rehabilitation panel be convened pursuant to 5 39-71-1016, MCA (1989). The panel met on May 15, 1991. The panel report dated May 24, 1991, recommended

several positions, as previously identified by the designated rehabilitation provider, as appropriate for claimant under

5 39-71-1012(c), MCA (1989), which provides for a disabled worker

to "return to a related occupation suited to the claimant's education and marketable ~ k i l l s . ~ Pursuant to 5 39-71-1018, MCA (1989), the Department adopted the panel recommendations, and on June 5, 1991, issued an initial order of determination. 2 Claimant

did not submit a written exception to the initial order within ten days as provided by 5 39-71-1018, MCA (1989), and therefore, the Department's initial order of determination became the final order of determination. Claimant did not bring an appeal from the final order of determination to the Workers' Compensation Court within the ten days provided under 5 39-71-1018, MCA (1989). The State Fund notified claimant on June 18, 1991, that based on the Department's order of June 5, 1991, her benefits would be terminated in 14 days. On September 4, 1991, claimant filed with

the Department a document entitled "Appeal of Final Order of Determination. " The State Fund filed a motion to dismiss

claimant's request, alleging a claimant had

lack of

jurisdiction because

failed to comply with the time requirements of (1989), within which a party may request a

5 39-71-1018, MCA

hearing. Claimant resisted this motion, arguing that although the time limit for requesting a hearing had run under 5 39-71-1018, MCA (1989), jurisdiction existed pursuant to 5 39-71-1033, MCA (1989). On November 22, 1991, the hearing examiner dismissed claimant's request. The hearing examiner determined that claimant's request

was not timely under 5 39-71-1018, MCA (1989), and concluded that

5 39-71-1033, MCA (1989), did not provide claimant with the right
to request a contested case hearing independent of the appeals process set out in 5 39-71-1018, MCA (1989). Claimant appealed this decision to the Workers' Compensation Court. On March 24, 1992, the Workers' Compensation Court reversed
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the decision of the hearing examiner.

The Workersg Compensation

Court concluded that the two statutes in question are not in conflict and that the language of 5 39-71-1033, MCA (1989),

provides an independent right to pursue a contested case hearing. The Workersv Compensation Court remanded the matter to the

Department to conduct a contested case hearing as provided for in

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