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: August 1, 1 9 9 2
Decided: November 24, 1992
,
.:' .
;. i 3
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
Pursuant to 5 39-71-1018, MCA
education and marketable ~ k i l l s . ~
(1989), the Department adopted the panel recommendations, and on
June 5, 1991, issued an initial order of determination. Claimant
2
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 lack of jurisdiction because
claimant had failed to comply with the time requirements of
5 39-71-1018, MCA (1989), within which a party may request a
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
3
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
§ 39-71-1033, MCA (1989). The State Fund appeals from that
decision.
The only issue to be decided by this Court is whether the
Workersv Compensation Court erred in determining that § 39-71-1033,
MCA (1989), provides an independent right to pursue a contested
case hearing before the Department when a claimant has failed to
timely request a hearing pursuant to 5 39-71-1018, MCA (1989).
Appellant requests that this Court review a conclusion of law
made by the Workers' Compensation Court. Concerning our standard
of review of conclusions of law we recently stated:
"In such a case, the appropriate standard of review is
simply whether the lower court's interpretation of the
law is correct. We are not bound by the lower court's
conclusion and remain free to reach our own."
Schaub v. Vita Rich Dairy (l989), 236 Mont. 389, 391, 770 P.2d 522,
523 (quoting Wassberg v. Anaconda Copper Co. (1985), 215 Mont. 309,
314, 697 P.2d 909, 912) . This Court has explained this standard of
review stating that:
The reasoning for simply determining if the court's
conclusions are correct is that no discretion is involved
when a tribunal arrives at a conclusion of law--the
tribunal either correctly or incorrectly applies the law.
For that reason, this Court concludes that our standard
of review relating to conclusions of law, whether the
conclusions are made by an agency, workers' compensation
court, or trial court, is whether the tribunal's
interpretation of the law is correct.
Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75,
803 P.2d 601, 603. The instant case deals with a conclusion of
law, and therefore, upon review we will simply determine whether
the conclusion was or was not correct. Additionally, it is
well-settled that the law existing at the time of injury governs.
Watson v. Seekins (1988), 234 Mont. 309, 312, 763 P.2d 328, 331.
Claimant was injured in 1989.
The resolution of this case depends upon an interpretation of
several Montana statutes. In interpreting statutes, this Court is
guided by several well-established principles. First, when a
general statute and a specific statute are inconsistent, the
specific statute governs, so that a specific legislative directive
will control over an inconsistent general provision. State v.
Montana Dept. of Public Service Regulation (1979), 181 Mont. 225,
593 P.2d 34; 5 1-2-102, MCA. However, when called upon to
interpret several different provisions this Court will, if
possible, construe the statutes so as to give effect to all of
them. Section 1-2-101, MCA. A specific statute will only govern
over a more general statute if the two statutes are in conflict and
cannot be resolved. In this case, the Workers' Compensation Court
concluded that the statutes could be interpreted so as to give
meaning to both statutes. While the statutes in question are not
5
models of clarity, we agree with the Workers' Compensation Court
that the statutes are not in direct conflict with each other.
The State Fund argues that as the statute specifically
addressing the filing of exceptions and requests for hearings on
the findings of the panel, 5 39-71-1018, MCA (1989), should govern
in this situation. Section 39-71-1018, MCA (1989), provides that:
(1) The department shall issue an initial order of
determination within 10 working days of receipt of a
report from a rehabilitation panel. If the initial order
of determination differs from the findings and
recommendations of the panel, the order must state the
reasons for the difference.
(2) Within 10 working days from the date the
initial order of determination is mailed, a party may
submit a written exception to the order. On its own
motion or at the request of any party, the department
shall conduct a hearing. The department shall issue a
final order of determination within 20 working days of
the hearing.
(3) If no party submits an exception within 10
working days, the initial order of determination becomes
the final order of determination and must be issued by
the department.
(4) Within 10 working days after the date of
mailing of the department's final order of determination,
an appeal may be taken to the workers' compensation
court.
Claimant concedes that she did not submit any written
exceptions to the initial order of determination, nor did she
appeal the final order of determination to the Workers'
Compensation Court, within the time provided in § 39-71-1018, MCA
(1989). However, claimant argues that 5 39-71-1033, MCA (1989),
provides a separate right to request a contested case hearing
be£ ore the Department. Section 39-71-1033, MCA (1989) , provides
that:
In addition to wrsuinq the hearinq omortunities
provided in 39-71-1018 and 39-71-1032, a party may brinq
a dispute arisins under the provisions of this part,
except for a dispute over which the department of social
and rehabilitation services has jurisdiction under
39-71-1019, before the de~artmentunder the contested
case Drovisions of the Montana ~dministrative Procedure
Act, Title 2, chapter 4, part 6 , and any rules
promulsated by the department. Within 10 days after
mailing of the department's final order, an interested
party may appeal to the workersf compensation court.
[Emphasis added.]
As the hearing examiner correctly noted, claimantts request
for a contested case hearing under 5 39-71-1033, MCA (1989), would
be considered timely pursuant to Rule 24.29.215 (2), AfCM. This rule
provides a claimant with 90 days to appeal from the notice of any
adverse action. Therefore, the only question before this Court is
whether 5 39-71-1033, MCA (1989), provides a separate right of
appeal.
The Workers1 Compensation Court, in discussing the effect of
§ 39-71-1018, MCA (1989), stated that:
On its face, Section 39-71-1018, MCA, allows an appeal to
the Workerst Compensation Court without the need for a
contested case hearing or a hearing of any kind before
the Department. Any such appeal, of necessity, would
have to be based on a "paper record.t1 Indeed even the
filing of exceptions, as provided in subsection (2) does
not mean that a hearing would necessarily follow.
The Workers1 Compensation Court noted that the clear language
,
of 3 39-71-1033, MCA (1989) provides for a contested case hearing
in addition to the hearing opportunities provided for in
§ 39-71-1018, MCA (1989). The Workers1 Compensation Court noted in
discussing the two statutes that:
By construing section 39-71-1033 to provide a party
an independent right to pursue a contested case under the
Montana Administrative Procedure Act, the Court can
preserve both statutes and give meaning to the phrase "In
addition to . . ..
I,
The Court notes that if the legislature had intended
these sections to be mutually exclusive it could easily
have done so. The fact that such exclusion is not
apparent requires the Court to give meaning to all of the
provisions of part 10.
The State Fund argues that the Workers' Compensation Court's
interpretation of these two statutes will. only confuse
"administrative procedure for the implementing agency and the
parties who must be able to rely on the statutes in consideration
of applicable hearing and appeal periods." The Workers'
Compensation Court merely interpreted the statutes as written,
giving effect to both provisions. Any resulting confusion is
entirely attributable to the legislative enactments which created
a separate right of appeal in $j 39-71-1033, MCA (1989). Under the
facts as presented in this case, the Workers1 Compensation Court
was correct in concluding that g 39-71-1033, MCA (1989), provides
a contested case hearing opportunity in addition to the process
provided for in 5 39-71-1018, MCA (1989).
Af finned.
We concur:
November 24, 1992
CERTIFICATE O F SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Elizabeth A. Horsman-Wiitala, Legal Counsel
State Compensation Mutual Ins. Fund
5 So. Last Chance Gulch
Helena, MT 59604-4759
Paul E. Toennis
Attorney at Law
316 No. 25th St.
Billings, MT 59101
Melanie Symons
Legal Services Division, Dept. of Labor
P.O. Box 1728
Helena, MT 59624-1728
E D SMITH
CLERK O F T H E SUPREME COURT
STATE O F MONTANA