No. 86-595
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
MICHAEL J. O'DONNELL,
Claimant and Appellant,
-vs-
RYANS, INC., Employer,
and
STATE COMPENSATION INSURANCE FUND,
Defendant and Respondent.
APPEAL FROM: The Workers' Compensation Court, The Honorable
Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Overfelt Law Firm; Gary Overfelt, Billings, Montana
For Respondent:
Crowley Law Firm; Terry G. Spear, Billings, Montana
Submitted on Briefs: March 12, 1987
Decided: May 13, 1987
Filed : Mo.'f 1 3 1987
*#
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Claimant, Michael J. O'Donnell appeals the order of a
hearings examiner for the Workers' Compensation Court denying
claimant's motion for a penalty on the medical expenses paid
in behalf of claimant. We remand this cause to the Workers'
Compensation Court for determination by the Workers'
Compensation judge.
The only issue this Court will now decide is whether we
have jurisdiction to consider an appeal of an order issued by
a hearings examiner for the Workers' Compensation Court.
Since we hold that we do not, we are barred from considering
the issues raised by the parties.
While employed at a warehouse in January 1980, claimant
slipped and fell 12 - 15 feet to a concrete floor, resulting
in serious injury to his shoulder. The injury developed into
thoracic outlet syndrome. The extended treatment of claimant
since the accident date has involved approximately 20 doctors
and has included more than a dozen surgeries. A number of
surgeries were performed to alleviate pain generated by prior
surgeries. The State Compensation Insurance Fund (State
Fund), with varying degrees of willingness, paid for these
procedures.
Thereafter, in the summer of 1986, the State Fund denied
claimant's request that it fund treatment at a specialized
pain clinic. Review of that decision was expedited pursuant
to agreement of the parties. A hearing was held before a
hearings officer on September 11, 1986, on the issues of
whether the pain treatment should be allowed and whether a
penalty should be assessed against defendant. The hearings
officer issued an order September 26, 1986, requiring the
State Fund to pay for the requested treatment. Then, on
December 8, 1986, the hearings officer issued an order
denying claimant's motion for penalty. It is from this order
that appeal lies.
The question whether the State Fund's refusal to pay
warranted imposition of a penalty was never presented to the
Workers' Compensation judge, as required by $ 39-71-2907,
MCA. Rather, claimant appealed directly to this Court. The
State Fund does not object to claimant's procedure. However,
we will consider the jurisdiction issue - sponte.
sua
The issue of subject matter jurisdiction cannot be
waived nor conferred by consent of a party, and may
be raised at any stage of a judicial proceeding by
a party or sua sponte by the court.
State v. Davis (Mont. 1984), 681 P.2d 42, 43, 41 St.Rep. 898,
899.
Section 39-71-2904, MCA, provides that "an appeal from a
final decision of the workers' compensation judge shall be
filed directly with the supreme court of Montana . . ."
(Emphasis supplied.) As mentioned earlier, $ 39-71-2907,
MCA, requires that the question of unreasonable delay or
refusal be determined by the Workers' Compensation judge.
Section 39-71-2907. Increase in award for
unreasonable delay or refusal to pay. When payment
of compensation has been unreasonably delayed or
refused by an insurer, ... the full amount of the
compensation benefits due a claimant, between the
time compensation benefits were delayed or refused
and the date of the order granting a claimant
com~ensation benefits, may be increased by the
- A
workers ' compensation - judg; by 20%. The question
- unreasonable delay - refusal shall -
of or be
--
d e t e r m e workers' compensation judge ...
(Emphasis supplied. )
From these statutes, it is unequivocally clear that we
only have juridiction to consider an appeal from an order of
the Workers' Compensation judge. We can not and will not
entertain an appeal from an order of a Workers' Compensation
Court hearings examiner.
This cause is remanded to the Workers' Compensation
Court for determination and entry of an appropriate order by
the Workers' Compensation judge. In the event of another
appeal to this Court, we will consider a request by either
party to determine the issues from the briefs presently
before us.
We Concur: /
L & b M ~Justices