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Laws-info.com » Cases » Montana » Supreme Court » 1989 » MELLEM v KALISPELL LAUNDRY DRY C
MELLEM v KALISPELL LAUNDRY DRY C
State: Montana
Court: Supreme Court
Docket No: 89-066
Case Date: 06/01/1989
Plaintiff: MELLEM
Defendant: KALISPELL LAUNDRY DRY C
Preview:NO. 89-66
IN THE SUPREME COIJRT OF THE STATE OF MONTANA

MARIE MELLEM ,

Claimant and Appell-ant, -vsKALISPELL TJAUNDRY & DRY CLEANERS, Empl-oyer , and STATE CONPENSATION INSURANCE FUND, Insurer and Respondent.

APPEAL FROM:

The Workers' Compensation Court, The Honorahl e Timothy Reardon, Judge presiding.

COUNSEL OF RECORD: For Appellant: Allan M. McGarvey; McGarvey, Feberling, Sullivan and McGarvey, Kalispell, Montana For Respondent: Steven J. Shapiro, Chief Legal Counsel and Charles Adams, Legal Counsel, Div. of Workers' Compensation, Helena, Montana
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Submitted on Briefs:
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April 2 7 , 1989

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Decided:
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June 1, 1989

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Mr. Justice R. C. McDonough del.iverecJ the Opinion 0 F +.he . Court. This appeal concerns the requirements for perfecting an appeal to the Montana Workers' Compensation Court under the Mari-e terms of the Montana Occupational Disease Act (MODA) Mellem appeals from the court's order dismissing her appeal. for failure to comply with the jurisdictional requirements of MODA. We reverse and remand with instructions. o Mellem presents three issues 'r review: 1. Did Mellem fail to perfect an appeal to the Workers' Compensation Court because her request for rehearing was denominated "Statement of Exceptions"? 2. Did the Workers' Compensation Court abuse its discretion by dismissing Mellem's appeal. without granting Leave to seek rehearing and later application for appeal? 3. Has Me1I.em been denied due process of law bv the procedural errors of the Division o-F Workers' Compensation and the Workers' Compensation Court.? Mellem was employed by a Kalispell laundry from 1981.

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until 1986. She suffers from severe chronic obstructive pulmonary disease along with chronic pneumonia. Mellem alleges that her lung problems are due in part to her exposure to certain fumes and particles while employed at the laundry. She filed a claim for occupational disease benefits with the State Compensation Insurance Fund, which denied liability. Mellem's claim was then referred to the Division of Workers' Compensation, which in turn referred her to a member of the Occupational Disease Panel for medical examination. Based on the report of the medical examination, the Division issued an order stating its preliminary determination that Mellem would not be entitled to benefits.

Mellem then requested a hearing before the Division, which b a held before a Hearing Examiner. rs After reviewing the record of Mellem's cl-aim, the Hearing Examiner issued his Findings of Fact, Conclusions of Law and Order, finding Mellem not entitled to occupational disease benefits. This document also contained a paragraph entitled "Notice", which reads in part as follows: You are hereby notified that you have the right to file exceptions and to present briefs and oral argument to the Administrator of the Division of Workers" Compensation who will decide whether or not to adopt or modify the foregoing Proposed Order. According to Mellem's brief to this Court, her counsel. contacted the Division to verify that the "exceptions" procedure was the same as the "rehearing" procedure required by
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