BEFORE THE DEPARTMENT OF LABOR AND INDUSTRY

OF THE STATE OF MONTANA

 

In the matter of the amendment of 24.29.201, 24.29.801, 24.29.804, 24.29.1201, 24.29.1202, 24.29.1203, 24.29.1404, 24.29.1702, 24.29.1721 and 24.29.3802 and the repeal of 24.29.1204 pertaining to workers' compensation

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT AND REPEAL

 

TO:  All Concerned Persons

 

            1.  On April 18, 2013, at 1:00 p.m., a public hearing will be held in the Sanders Auditorium of the DPHHS Building, 111 North Sanders St., Helena, Montana, to consider the proposed amendment and repeal of the above-stated rules.

 

2.  The Department of Labor and Industry (department) will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice.  If you require an accommodation, contact the department no later than 5:00 p.m. on April 12, 2013, to advise us of the nature of the accommodation that you need.  Please contact Barbara Gullickson, Department of Labor and Industry, 1805 Prospect, Helena, Montana, 59601; telephone (406) 444-6451; fax (406) 444-4140; TDD/Montana Relay Service at (406) 444-6543; or e-mail bgullickson@mt.gov.

 

3.  The rules proposed to be amended provide as follows, deleted matter interlined, new matter underlined:

 

24.29.201  INTRODUCTION  (1)  The purpose of this subchapter is to ensure compliance with the workers' compensation and occupational disease acts act administered by the department.  The department strives to accomplish this purpose through education, consensus building, and dedication to customer service.

(2) and (3) remain the same.

 

AUTH:  2-4-201, 39-71-203, and 39-72-203 MCA

IMP:  Title 2, chapters 3 and 4, MCA

 

REASON:  The department determined it is reasonably necessary to delete an erroneous reference to the Occupational Disease Act and amend the authority cites, accordingly.  The amendment further implements Senate Bill 481 from 2005, which merged occupational diseases into the Workers' Compensation Act and repealed the occupational disease statutes.

 

            24.29.801  ACCIDENT REPORTING  (1) remains the same.

            (2) If an insurer changes an adjuster or an employer changes its third party adjuster, the department must be notified in writing by the office assuming the account(s), within 30 days from the time the account is transferred. The notification must include:

            (a) the adjuster's or third party adjuster's business address and telephone number;

            (b) an effective date of transfer;

            (c) a general description of the type of claims transferred (if there are identifiable categories or classes of claims); and

            (d) upon request for each claim transferred:

            (i) the claimant's name;

            (ii) the claimant's social security number;

            (iii) the date of injury or occurrence; and

            (iv) the insurer's claim number.

           

            AUTH:  39-71-203, and 39-71-307, MCA

            IMP:  39-71-307, and 39-71-603, MCA

 

REASON:  The department is amending this rule to delete and relocate the requirement that insurers notify the department regarding reassignment of claims examination services.  In 2007, the Legislature enacted Senate Bill 108 and  amended 39-71-107, MCA, to require that insurers provide advance notice to the department when the insurer plans to reassign claims examination services.  The department determined this requirement would more reasonably and logically be located in ARM 24.29.804, which deals with claims examiners, and is moving the provision accordingly.

 

24.29.804  ADJUSTERS EXAMINERS AND THIRD-PARTY ADMINISTRATORS IN MONTANA  (1)  All workers' compensation and occupational disease claims filed pursuant to the Montana Workers' Compensation and Occupational Disease Acts Act must be adjusted by a person in Montana.  For the purposes of this rule, a claim is deemed to be "adjusted by a person in Montana" if the person who can determine entitlement to benefits, authorize payment of all benefits due, manage the claim and has authority to settle the claim, maintains an office that is located in Montana and adjusts Montana claims from that office.  The office may be in the examiner's personal residence located in Montana.  The sole use of a mail box or mail drop located in Montana does not constitute maintaining an office in Montana.

(2)  An insurer must maintain the documents related to each claim filed with the insurer under the Montana Workers' Compensation or Occupational Disease Acts Act at the office of the person adjusting the claim in Montana until the claim is settled.  The documents may either be original documents, or duplicates of the original documents, and must be maintained in a manner which allows the documents to be retrieved from that office and copied at the request of the claimant or the department.  Settled claim files stored outside of the adjuster's examiner's office must be made available by the insurer within 48 hours of a request for a file.  Electronic or optically imaged documents are permitted by this rule.

(3) remains the same.

(4)  At least 14 days in advance of a change in a third-party administrator responsible for workers' compensation claim examination services, the insurer must notify the department in writing, using the department's current Third-Party Administrator Change Form or by another format preapproved by the department.  The written notification must be mailed, faxed, or e-mailed to the department's designated contact person.

(5)  The insurer may delegate the duty to notify the department to a third-party administrator or policy holder.

(6)  Failure to timely notify the department of a change in a third-party administrator may result in the imposition of an administrative penalty against the insurer, pursuant to 39-71-107, MCA.

 

AUTH:  39-71-107, 39-71-203, MCA

IMP:  39-71-105, 39-71-107 and 39-71-203, MCA

 

REASON:  The department determined it is reasonably necessary to delete erroneous references to the Occupational Disease Act in text and the implementation cites.  The 2005 Montana Legislature enacted Chapter 416, Laws of 2005 (Senate Bill 481), which merged occupational diseases into the Workers' Compensation Act and repealed the occupational disease statutes.

            The department is amending this rule to replace the term "adjuster" with "examiner" and align with current industry terminology.  The department is also amending (1) to clarify that in-state claims examiners may operate offices out of their personal Montana residences.  This amendment reasonably accommodates a common home-office business model used by examiners in Montana and allows the separation of business and personal correspondence.  The amendment meets the intent of the law, which is to require examiners to maintain Montana business offices, since the examiner with a home office does actually reside and work in Montana, and a business post office box is not used as a substitute for Montana residency.

            In 2007, the Legislature enacted Senate Bill 108, amending 39-71-107, MCA, to require that advance notice is provided to the department when an insurer plans to reassign claims examination services.  The department is relocating the notice requirement from ARM 24.29.801 and is updating to require that notice is provided prior to the claim services change.

 

24.29.1201  INTRODUCTION  (1)  The procedure for determining whether lump sum conversion of department may approve a petition for a lump-sum settlement between an insurer and an injured worker or the worker's beneficiary, which converts permanent disability biweekly payments to a lump-sum payment, will be approved is generally defined in in accordance with the provisions of 39-71-741, MCA.

            (2)  The conversion can only be made upon written application of the injured worker or the worker's beneficiary, with the concurrence of the insurer, subject to the discretionary approval of the department as to the amount of the lump sum payment and the advisability of the conversion.  No department approval is required for a lump-sum payment of:

            (a)  accrued indemnity benefits;

            (b)  advance indemnity benefits; or

            (c)  an impairment award for a claim with a date of injury on or after July 1, 2005.

(3)  It is presumed The department presumes that biweekly benefit payments are in the best interests of the worker or his beneficiary.  The Department approval of an application a petition for lump-sum conversion by the department must be the exception, not the rule, and may be given only if the worker or his beneficiary demonstrates that his the worker's ability to sustain himself become financially self-sustaining is more probable with a whole or partial lump-sum conversion payment than with the biweekly payments and his the worker's other resources, as outlined by ARM 24.29.1202.

            (4)  Permanent Conversion of biweekly permanent partial disability benefits conversions to a lump-sum must meet the requirements of (3) above only when the claimant's date of injury was prior to July 1, 1991.

(5)  Conversion of biweekly Permanent permanent total conversions disability benefits to a lump-sum must meet the test of (3) above plus all other requirements provided herein for all dates of injury.  These rules do not apply to lump sums of accrued benefits, impairment awards, or disputed liability settlements where no recognition is ever made of benefits due.

(5) (6)  Controversies The workers' compensation court has jurisdiction over disputes between claimants and insurers regarding a conversion of biweekly disability payments to a lump-sum or a and disputes arising from the department's denial of approval of a petition for conversion to a lump sum by the department, are considered disputes for which the workers' compensation judge has jurisdiction to make a decision.  A dispute between an insurer and claimant is subject to mediation.  A dispute arising from department denial of a petition for conversion is not subject to mandatory mediation.

(6)  Lump sum settlement agreements reached prior to April 15, 1985, will be allowed and approved, or denied, under provisions of 39-71-741, MCA, in effect before enactment of Senate Bill 281. Section 39-71-741, MCA, as amended, will be applied to all lump sum settlements reached on or after April 15, 1985. An injured worker or his beneficiary submitting a lump sum settlement reached before April 15, 1985, must provide to the department a written statement that agreement was reached before April 15, 1985.

 

AUTH:  39-71-203, MCA

IMP:  39-71-741, MCA

 

REASON:  The department is amending (2) to further specify that no department approval is required for a lump-sum payment by an insurer for accrued benefits, advance benefits, and impairment awards for claims with dates of injury after July 1, 2005.  This amendment is reasonably necessary to further implement statutory changes to 39-71-741, MCA, through Senate Bill 8 in 2005.

            The 2011 Montana Legislature enacted Chapter 36, Laws of 2011 (House Bill 359) and Chapter 167, Laws of 2011 (House Bill 334), bills that amended the Workers' Compensation Act.  It is reasonably necessary to amend (3) and (5) to further implement the legislation by amending the criteria for department approval of lump-sum conversions and clarifying that the department may only disapprove a settlement agreement between an insurer and claimant to convert permanent partial disability payments to a lump-sum if the department finds the lump-sum amount inadequate.

            The 1991 Montana Legislature enacted House Bill 837, which eliminated the requirement that an injured worker demonstrate financial need for a lump-sum payment of permanent partial disability benefits.  It is reasonably necessary to amend (4) to implement the 1991 changes to the law.  The amended rule will clarify that a claimant must still prove financial need to qualify for a lump-sum conversion of permanent total disability benefits.

            It is reasonably necessary to amend new (6) to align with 39-71-741, MCA, and address confusion among parties by clarifying which disputes are subject to mediation.  The department is also deleting obsolete provisions in former (6) regarding settlement agreements reached before April 15, 1985.

 

24.29.1202  DOCUMENTATION REQUIREMENTS  (1)  Requests for A petition to the department for lump-sum conversions conversion of biweekly permanent partial and permanent total and death disability benefits for all dates of injury must include a description of the lump-sum proposal, including but not limited to:

            (a)  analysis of current financial conditions as described in (3),;

            (b)  analysis of financial condition under the proposed lump-sum conversion as described in (4), that includes a description of the use of the lump-sum and how this use will contribute to financially sustaining the worker over the same period biweekly payments would have been paid;

            (c)  analysis of financial condition that would be reasonably expected had the worker not been injured as described in (6); and

            (d)  an affidavit signed by the worker or his beneficiary, attesting to the validity of information provided in the worker's or beneficiary's written application petition. 

            (2)  Requests for lump sum conversions of permanent total and death benefits must include, in addition to the requirements of (1), calculations of the total amount of benefits to be converted and their reduction to present value at a 7% discount, compounded annually, or an analysis of financial condition that would be reasonably expected had the worker not been injured as described in (7).  A petition to the department for conversion of biweekly permanent partial disability benefits to a lump-sum payment must include an analysis of current financial conditions as described in (3) only for a claim with a date of injury prior to July 1, 1991.

            (3)  "Analysis of current financial condition" for purposes of (1) shall include a list of all the worker's or beneficiary's income, assets, and liabilities, and as well as other available resources, including but not limited to:

            (a) through (d) remain the same.

            (4)  "Analysis of financial condition under the proposed lump sum conversion" for the purposes of subsection (1) shall include a description of the use of the lump sum and how this use will contribute to financially sustaining the worker or beneficiary over the same period biweekly payments would have been paid. Additional documentation is required for permanent total or death benefit lump sum proposals if a proposal involves debts or business ventures as indicated in subsections (5) and (6).

(5) (4)  If a petition for lump-sum conversion of permanent total or death benefit lump sum proposal benefits involves the partial or total elimination of existing delinquent or outstanding debts, a debt management plan must be described and include:

(a)  plan of management, through applying the proposed lump-sum conversion payment, of all existing delinquent or outstanding debts, both short- and long-term; and

(b)  description of how the worker or his beneficiary will be sustained financially through use of the lump-sum conversion payment and other available resources, including cash available throughout the life of the debt management plan, to manage delinquent or outstanding debts.

            (6) (5)  If a permanent total or death benefit lump-sum proposal involves a business venture, a business plan must be described and include:

            (a)  Information indicating the worker's or beneficiary's capability in proposed business venture, including:

            (i)  through (iv) remain the same.

            (b)  and (c) remain the same.

            (d)  A statement of cash that will be available to the worker or his beneficiary as income on a biweekly basis after start-up costs and other business expenses are considered throughout the life of the venture.

(7) (6)  "Analysis of financial condition that would be reasonably expected had the worker not been injured" for purposes of subsection (2) (1) must include a description of the income the worker or beneficiary would have received and the basis upon which the estimate is derived.  The analysis must include:

(a) and (b) remain the same.

            (7)  A request for lump-sum settlement of medical benefits must include the following information:

            (a)  copy of medical reports documenting maximum medical improvement, current diagnosis, and recommendations for future treatment, if any;

            (b)  specific dollar amount of the settlement allocated to medical benefits;

            (c)  statement from the claimant and insurer as to why it is in the best interest of the parties to settle medical benefits;

            (d)  statement signed by the claimant to acknowledge the claimant understands which specific medical benefits will terminate upon settlement;

            (e)  statement signed by the claimant to acknowledge the claimant is on notice and understands that the future medical benefits settled under the agreement may not be covered by secondary healthcare payers such as Medicare, Medicaid, or other health insurers; and

            (f)  submission of the following completed forms to the department:

(i)  "Summary of Settlement of Medical Benefits" form with original signatures by the claimant and the insurer or the insurer's authorized representative; and

            (ii)  "Petition for Settlement Injury/Occupational Disease Medical Benefits Closed On An Accepted Claim" form with original signatures by the claimant, a witness, and the insurer or the insurer's authorized representative.

            (8)  The total value of the workers' compensation benefits may be discounted at the current rate established by the department when an insurer calculates a conversion to a lump-sum payment.  Only for claims with dates of injury between April 15, 1985 and June 30, 1987, the lump-sum payment may be discounted by 7%, compounded annually.

 

            AUTH:  39-71-203, MCA

            IMP:  39-71-741, MCA

 

REASON:  The department is amending this rule to delete all references to death benefits and beneficiaries as 39-71-741, MCA, does not require any particular process for a lump-sum payment following death of a claimant.  While the statute addresses agreements to settle claims for all types of benefits with lump-sum payments, the law does not require someone receiving benefits following the death of an injured worker to prove the beneficiary's ability to become self-sustaining.

            The 1991 Montana Legislature enacted House Bill 837, which eliminated the requirement that an injured worker demonstrate financial need for a lump-sum payment of permanent partial disability benefits.  It is reasonably necessary to amend (1) and (2) to implement the 1991 changes to the law.  The amended sections of the rule clarify that a claimant must still prove financial need to qualify for a lump-sum conversion of permanent total disability benefits.

            The 2011 Montana Legislature enacted Chapter 36, Laws of 2011 (House Bill 359) and Chapter 167, Laws of 2011 (House Bill 334), that amended the Workers' Compensation Act.  It is reasonably necessary to add (7) to this rule to implement the legislation and allow for the settlement of future medical benefits by conversion to a lump-sum payment when the claimant has reached maximum medical improvement.  This addition to the rule reasonably requires two written acknowledgments, signed by the claimant, to address the Legislature's concern that the claimant is on notice of the impact of settlement upon claimant's future medical expenses.  One acknowledgment documents the claimant's understanding of the exact medical benefits that will terminate upon settlement and the second documents the claimant's understanding that settlement may adversely impact insurance coverage of future treatment needed as a result of the work-related injury.

            The proposed addition of (8) is necessary to correctly reflect current law regarding the appropriate amortization rate that may be used when biweekly benefits are converted to a lump-sum payment.  The proposed amendment clarifies that the 7% discount in the dollar amount of benefits applies only to claims with dates of injury between April 15, 1985 and June 30, 1987.  These changes further implement Senate Bill 281 of 1985 (set amortization discount at 7% per year, compounded annually) and Senate Bill 315 of 1987 (set amortization discount based on the average for U.S. ten-year treasury bills in the previous calendar year).

            The department has determined that it is reasonably necessary to prevent confusion or inadvertent oversight to repeat the different requirements for financial analysis for permanent partial lump-sum conversions and permanent total lump-sum conversions, which are also set forth in ARM 24.29.1203.

 

24.29.1203  METHODS THE DEPARTMENT WILL APPLY TO EVALUATE INFORMATION PROVIDED  (1)  In all The department shall deny a petition for a lump-sum conversion requests of permanent total disability unless, the worker or his beneficiary must demonstrate demonstrates that his the worker's ability to sustain himself become financially self-sustaining is more probable with a whole or partial lump-sum conversion payment than with biweekly payments and his the worker's other resources, or the application for a lump sum conversion will be denied.

(2)  In permanent total lump sum conversion requests, if the worker or his beneficiary demonstrates in addition that his ability to sustain himself financially is more probable with a whole or partial lump sum conversion than with biweekly payments and his other resources, then:  The department shall approve a petition for lump-sum conversion of permanent total disability benefits when:

(a)  If the The worker or his beneficiary demonstrates that his the worker's financial condition under the lump-sum proposal will not be greater than could have reasonably been expected had the worker not been injured, and the lump-sum will be approved only if it is limited to the unpaid biweekly benefits, assuming interest at 7% per year, compounded annually.; and

(b)  If the The worker or his beneficiary demonstrates that he the lump-sum proposal will improve his the worker's financial condition with the lump sum over what could have been reasonably expected had the worker not been injured, and the lump-sum will be approved only if it is limited to the purchase price to the insurer of an annuity that would yield an amount equal to the biweekly benefits payable over the estimated duration of the compensation period.

(3)  For claims with date of injury between April 15, 1985 and June 30, 1987, all requirements of (2) must be met and the proposed lump-sum amount of unpaid biweekly benefits may be discounted at a rate of 7% per year, compounded annually.

(3)(4)  If the claimant does not meet the requirements of 39-71-710, MCA, and the estimated duration of the compensation period is the remaining life expectancy of the worker or his beneficiary, the insurer shall determine the remaining life expectancy will be determined by using in accordance with the most recent Life Table:  Expectation of Life at Single Years of Age, by Race and Sex: United States, all races, both sexes column, in Vital Statistics of the United States, Volume II-Mortality, Part A, U.S. Department of Health and Human Services, Public Health Service, National Center for Health Statistics.

(4) (5)  If the difference between the present discounted value of a permanent total disability lump-sum payment and the future value of the biweekly payments is the only ground justification provided for the lump-sum conversion, the department shall deny the lump sum conversion will be denied petition.

            (5)(6)  The department will shall deny or approve all a lump-sum settlement applications petition within 30 14 days of receipt.  If additional information is required to enable a determination on such applications a petition, it will be requested the department shall request the information within the 30 14-day review period.  If additional information is not received within 30 days the 14-day review period, the department shall deny the petition application will be denied on the basis of lack of information.

 

AUTH:  39-71-203, MCA

IMP:  39-71-710, 39-71-741, MCA

 

REASON:  The 1991 Montana Legislature enacted House Bill 837, which eliminated the requirement that an injured worker demonstrate financial need for a lump-sum payment of permanent partial disability benefits.  It is reasonably necessary to amend this rule to implement the 1991 changes to the law.  The amended rule further clarifies that a claimant must still prove financial need to qualify for a lump-sum conversion of permanent total disability benefits.

            The department is amending this rule to delete all references to death benefits and beneficiaries as 39-71-741, MCA, does not require any particular process for a lump-sum payment following death of a claimant.  While the statute addresses agreements to settle claims for all types of benefits with lump-sum payments, the law does not require someone receiving benefits following the death of an injured worker to prove the beneficiary's ability to become self-sustaining.

            The proposed addition of new (3) will clarify that the 7% discount may only be applied to claims with dates of injury within the two-year period authorized by law.  The amendment will address the significant confusion regarding the period in which the discount applied.

            The department determined it is reasonably necessary to add a reference to 39-71-710, MCA, in both (4) and the implementation cites, to address confusion regarding the estimated duration of benefits prior to retirement age.  The statute provides that when claimants retire, insurer liability ends for disability benefits except temporary total, impairment awards, and medical benefits.

            In Senate Bill 348, the 1997 Montana Legislature limited the time to 14 days for department review of a petition for lump-sum conversion of permanent total disability benefits.  The department is amending (6) to align with the law.

 

24.29.1404  DISPUTED MEDICAL CLAIMS  (1) through (3) remain the same.

(4)  The rule of privileged communication is waived by the injured worker seeking benefits under the Workers' Compensation or Occupational Disease acts Act.

 

AUTH:  39-71-203, MCA

IMP:     39-71-203, 39-71-704, MCA

 

REASON:  The department is amending this rule to delete an erroneous reference to the Occupational Disease Act, since the statutes were merged into the Workers' Compensation Act in 2005.  The department is amending the implementation cites to accurately reflect all statutes implemented through the rule.

 

24.29.1702  REHABILITATION PANELS FOR CLAIMS BETWEEN JULY 1, 1987 and JUNE 30, 1991  (1)  This rule only applies to services provided to claimants with dates of injury between July 1, 1987 and June 30, 1991.

(1) though (3) remain the same but are renumbered (2) through (4).

 

AUTH:  39-71-203, MCA

IMP:     39-71-1015 through 39-71-1019, MCA (1987)

 

REASON:  The 1991 Montana Legislature enacted House Bill 837 and repealed 39-71-1012, 39-71-1015 to 39-71-1019, 39-71-1023, 39-71-1024, and 39-71-1026, MCA, regarding occupational rehabilitation services provided to injured workers through rehabilitation panels.  Because the law in effect at the time of a work-related injury determines an injured worker's statutory rights to rehabilitation services, the department determined it is reasonably necessary to amend this rule to clarify the rule's application only to services provided to claimants with dates of injury between July 1, 1987 and June 30, 1991.  The pertinent statutes governing the provision of rehabilitation services were enacted by the 1987 Legislature and remained in effect until repealed in 1991.

 

24.29.1721  PAYMENT OF REHABILITATION EXPENSES FROM THE INDUSTRIAL ACCIDENT REHABILITATION ACCOUNT FOR CLAIMS ARISING BEFORE JULY 1, 1991  (1) and (2) remain the same.

(3)  For claims arising on or after July 1, 1991, payment of rehabilitation expenses is the responsibility of the insurer.

 

            AUTH:  39-71-203, MCA

            IMP:  Title 39, chap. 71, part 10, MCA (1987) (1989) and (1991)

 

REASON:  The Industrial Accident Rehabilitation Account is only available for services to claimants whose date of injury occurred before the enactment of significant statutory changes to Title 39, chapter 71, part 10 by the 1991 Montana Legislature through House Bill 837.  The department is amending this rule to clarify that since the effective date of the 1991 legislation, the responsible party for payment of a claimant's rehabilitation benefits is the insurer when the date of injury occurred after July 1, 1991.

 

24.29.3802  ATTORNEY FEE REGULATION  (1)  This rule is promulgated under the authority of 39-71-203, and 39-71-613, and 39-71-2905, MCA, to implement regulation of the fees charged to claimants by attorneys in workers' compensation cases as provided in 39-71-613 , MCA. 

(2)  An attorney representing a claimant on a workers' compensation claim shall submit to the division department within 30 days of undertaking representation of the claimant, in accordance with 39-71-613, MCA, on forms supplied by the division department, a contract of employment stating specifically the terms of the fee arrangement.  An attorney substituting for another attorney previously representing a claimant must submit a new contract conforming with this rule within 30 days of undertaking representation of the claimant.  The contract of employment shall be signed by the claimant and the attorney, and must be approved by the administrator of the division of workers' compensation or his the administrator's designee.  The administrator or his the administrator's designee shall return the contract to the attorney along with a notification that the contract has been approved or disapproved.

(3) through (5) remain the same.

(6)  Nothing prevents an attorney from charging a fee below the fee guidelines set forth in (3) and (4).  An attorney may reduce the attorney's fee from what was originally established in the approved fee contract without the further approval of the division department.

(7)  For good cause shown, the division department may approve a variance providing for fees in excess of the guidelines of fees as set forth in (3) and (4).

(a)  remains the same.

(b)  If a variance requested under (7)(a) is not approved, an attorney may request that the administrator or his the administrator's designee review the matter and issue his an order of determination pursuant to procedures set forth in ARM 24.29.201, et seq.

(8)  Attorneys' Attorney compensation shall be determined by the approved fee arrangement and shall be paid out of the funds received in settlement or recovery or other funds available to the claimant.  Upon the occurrence of a hearing before the workers' compensation court or the supreme court, the workers' compensation court shall have exclusive jurisdiction for the award of attorneys attorney's fees on the claim against the insurer or employer, which shall be credited to the fee due from the claimant.

(9)  In the event a dispute arises between any claimant and an attorney relative to attorney's fees in a workers' compensation claim, upon request of either the claimant or the attorney or upon notice of any party of a violation of 39-71-613, MCA, or this rule, the administrator or his designee workers' compensation court shall review the matter and issue his an order resolving the dispute pursuant to procedures set forth in ARM 24.29.201, et seq.  The fee contract shall must clearly identify the rights granted by this subsection.

(10)  The division department retains its authority to regulate the attorney fee amount in any workers' compensation case according to the factors set forth in 39-71-613, MCA, and subsection (7)(a) of this rule even though the contract of employment fully complies with 39-71-613, MCA, and this rule.

(11)  remains the same.

            (12)  If an attorney violates a provision of 39-71-613, MCA, this rule, or an order fixing an attorney's fee, he the attorney shall forfeit the right to any fee which he the attorney may have collected or have been entitled to collect.

 

AUTH:  39-71-203, MCA

IMP:  39-71-225, and 39-71-613, 39-71-2905, MCA  

 

REASON:  The proposed rule amendment is necessary to bring the rule into conformity with Pinnow v. Montana State Fund and Halverson, Sheehy & Plath, P.C., 2007 MT 322, ¶ 35, 340 Mont. 217, 172 P.3d 1273, in which the Montana Supreme Court held that the workers' compensation court is the appropriate forum for resolving attorney fees disputes described by this rule.  The Court further declared that jurisdiction over attorney fee disputes was effectively conferred by the Legislature to the workers' compensation court by 39-71-2905, MCA.

            The department is updating the language of this rule to comply with the Code Commissioner's instructions to refer to the "division of worker's compensation" as the "department," meaning the "department of labor and industry."  The rule is also amended to conform with the requirements for gender-neutral language in Montana's administrative rules.

 

            4. The department proposes to repeal the following rule:

 

24.29.1204  FURTHER STUDIES MAY BE REQUIRED

 

            AUTH:  39-71-203, MCA

            IMP:  39-71-741, MCA

 

REASON:  The department determined that it is reasonably necessary to repeal ARM 24.29.1204 as unnecessary since the provisions of this rule are currently set forth in other administrative rules.

 

            5.  Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing.  Written data, views, or arguments may also be submitted to: Barbara Gullickson, Department of Labor and Industry, 1805 Prospect, Helena, Montana, 59601; telephone (406) 444-6541; fax (406) 444-4140; or e-mail bgullickson@mt.gov, and must be received no later than 5:00 p.m., April 25, 2013.

 

6.  Caroline Holien, Department of the Labor and Industry, Hearings Bureau, has been designated to preside over and conduct this hearing.

 

7.  The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency.  Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices.  Notices will be sent by e-mail unless a mailing preference is noted in the request.  Such written request may be mailed or delivered to the contact person in paragraph 5 above or may be made by completing a request form at any rules hearing held by the department.

 

8.  An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register.  The Secretary of State strives to make the electronic copy of the notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered.  In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.

 

9.  The department has complied with the bill sponsor notice requirements of 2-4-302, MCA.  The primary bill sponsors were contacted on November 28, 2012, by electronic mail.  The department also solicited comments from various stakeholders and provided an informal two-week comment period.  The department considered the comments received prior to finalizing the proposed rule amendments.

 

 

/s/  Darcee L. Moe                                        /s/  Pam Bucy                                   

Darcee L. Moe                                              Pam Bucy

Rule Reviewer                                               Commissioner

                                                                        Department of Labor and Industry

           

Certified to the Secretary of State March 18, 2013.