96-610

                                                              No. 96-610

                              IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                    1997




                                                       MARGARET EPPERSON,

                                               Petitioner and Respondent,

                                                                      v.

                                            WILLIS CORROON ADMINISTRATIVE
                                                SERVICES CORPORATION,

                                                Respondent and Appellant,

                                          ST. PETER'S COMMUNITY HOSPITAL,

                                                               Employer.




               APPEAL FROM:    Workers' Compensation Court, State of Montana
                       The Honorable Mike McCarter, Judge presiding.



                                                       COUNSEL OF RECORD:

                                                          For Appellant:

                                   Norman H. Grosfield; Utick & Grosfield,
                                               Helena, Montana

                                                         For Respondent:

                             Joe Seifert; Keller, Reynolds, Drake, Johnson
                                      & Gillespie, Helena, Montana




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                                      Submitted on Briefs: January 9, 1997

                                                  Decided: March 11, 1997
                                                           Filed:



                                __________________________________________
                                                   Clerk

            Justice W. William Leaphart delivered the Opinion of the Court.


               Willis Corroon Administrative Services Corporation (Corroon),
             appeals from the decision of the Workers' Compensation Court
            finding respondent, Margaret Epperson's (Epperson), request for
                             hearing as timely. We affirm.
                          We address the following issue on appeal:
                  Does an Order of Determination only become "final" under
                    39-72-612, MCA, once an administrative review has been
                      completed or once the time for seeking review has
                                           expired?


                                                    BACKGROUND
                   In 1993, Epperson, a long-time employee of St. Peter's
          Hospital, began working as a nurse in a newly constructed wing of
           the hospital. Over the next two years, Epperson developed upper
         respiratory symptoms including, cough, nasal congestion, shortness
         of breath, and watery eyes. In May of 1995, Epperson's physician,
         Dr. Earl Book, released her from work. In June of 1995, Epperson,
              without an attorney, filed a claim for occupational disease
            benefits. After receiving Epperson's claim, the Department of
          Labor & Industry (the Department), directed Epperson to submit to
         a medical examination. In September of 1995, Epperson submitted to
         a medical examination conducted by Dr. Michael Sadaj (Dr. Sadaj) to
          determine if she suffered from an occupational disease. Although
          Dr. Sadaj did not find that Epperson had an occupational disease,
           he recommended further testing. Following this examination, the
           Department issued an "order referring copy of medical reports to
         parties" which indicated that Epperson's occupational disease claim
         would be denied. This order also notified Epperson of her right to
                                 a second examination.
                Epperson did not request a second examination and on November
          27, 1995, the Employment Relations Division (ERD) issued an "order
         of determination" which denied her claim. This order also notified
         Epperson of a right to request a hearing within 20 days and stated:


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                           Pursuant to 39-72-612, MCA, the parties are hereby
                          notified a party adversely affected by this Order of
                        Determination has twenty (20) days from the date of this
                       Order to request a hearing before the Department of Labor
                                       & Industry Legal Division.

         The November 27, 1995, order also explained that failing to request
                           a hearing would make the order final.
                  Epperson did not request a hearing within 20 days. However,
              after consulting with counsel, Epperson requested a hearing in
               January of 1996. The insurer, Corroon, moved to dismiss this
             request as untimely and a Department hearing officer agreed and
                dismissed the case. Epperson appealed this decision to the
           Workers' Compensation Court which overruled the hearing officer's
                decision and remanded the case for a hearing on the merits.
                 In its holding, the Workers' Compensation Court found that the
            hearing officer erred in dismissing Epperson's claim because the
               Department's November, 1995 order was not a "final" order of
         determination within the meaning of      39-72-612, MCA. The Workers'
              Compensation Court explained that a Department order does not
                become final until after the Commissioner has completed her
         administrative review or after the time for seeking review expires.
          The court held that the time for seeking administrative review was
         90 days and Epperson had filed her request within that time period.


                                                           DISCUSSION
                        Does an Order of Determination only become "final" under
                          39-72-612, MCA, once an administrative review has been
                            completed or once the time for seeking review has
                                                 expired?

                In reviewing Workers' Compensation Court decisions, we review
               the findings of fact to determine if they are supported by
          substantial, credible evidence and we review conclusions of law to
             determine if they are correct. Turjan v. Valley View Estates
            (1995), 272 Mont. 386, 390, 901 P.2d 76, 79 (citing Caekaert v.
            State Comp. Mut. Ins. Fund (1994), 268 Mont. 105, 111, 885 P.2d
           495, 498). As this case exclusively deals with a single question
         of law, we will review the Workers' Compensation Court's conclusion
                           of law to determine if it was correct.
                  In this appeal, Corroon contends that Epperson failed to
             request a hearing within the 20-day limit imposed by     39-72-
                     612(1), MCA. Section 39-72-612(1), MCA, states:
                    (1) Within 20 days after the department has issued its
                      order of determination as to whether the claimant is
                      entitled to benefits under this chapter, a party may
                   request a hearing. In order to perfect an appeal to the


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                          workers' compensation judge, the appealing party shall
                         request a hearing before the department. The department
                             shall grant a hearing, which may be conducted by
                        telephone or by videoconference. The department's final
                        determination may not be issued until after the hearing.

          This section establishes the time frame within which to request a
          hearing. An untimely request for hearing must be dismissed. Cf.
         First Security Bank of Havre v. Harmon (1992), 255 Mont. 168, 172,
          841 P.2d 521, 524 (time limits fixed for appeal are mandatory and
            jurisdictional and failure to perfect an appeal within the time
                          allowed requires dismissal of the appeal).
                 Epperson sought to avoid the consequences of the above statute
         by arguing that she should receive the benefit of the more liberal
          90-day time frame for requesting a hearing under the Department's
             administrative regulations. Section 24.29.215(2), ARM (1987).
           While recognizing that Epperson had properly read         24.29.215(2)
          ARM (1987), (read in conjunction with         24.29.207(6), ARM (1983))
                as granting her 90 days to request a hearing, the Workers'
          Compensation Court rejected this argument noting that this 90-day
         provision conflicts with the 20-day statutory period for requesting
              a hearing under      39-72-612 MCA. The Department cannot adopt
            regulations contrary to or conflicting with an express statute,
          Bick v. Montana Department of Justice (1986), 224 Mont. 455, 457,
          730 P.2d 418, 420. Thus, since the administrative grant of a 90-
            day period within which to request a hearing directly conflicts
         with the statutory limit of 20 days, the administrative regulation
               is void as applied to an occupational disease determination.
         Michels v. Dept. of Social & Rehab. Services (1980), 187 Mont. 173,
                                    177, 609 P.2d 271, 273.
                  The court then focused on the provisions of subsection (1) of
                       24.29.215, ARM (1987), which provides as follows:
                        (1) A party seeking administrative review under ARM
                     24.29.206 must make a written request for administrative
                    review to the division [Department] within ninety days of
                                      notice of adverse action.

         Contrary to subsection (2) which pertains to requests for hearings,
            subsection (1) pertains to requests for administrative review.
              Requests for administrative review do not conflict with the
             "request for hearing" language of     39-72-612, MCA, and thus
                   subsection (1), unlike subsection (2), is not void.
                 The Workers' Compensation Court reasoned, as we agree, that
                the Department's November 27th order was not an order of
         determination within the meaning of     39-72-612, MCA. This section
          refers to the Department and "its order of determination." As the
             court noted, "[t]he quoted section connotes finality, with a
             hearing as the next recourse. The order contemplated by the


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               section is the last and final order issued by the Department
         without hearing, and not some initial or non-final order." In this
              case, ERD's November 27, 1995 Order of Determination was not a
              final order so long as it was subject to administrative review
          without a hearing under subsection (1) of         24.29.215, ARM (1987).
              "Administrative review" is an informal review of "any division
            [Department] order" by the Commissioner of Labor or her designee
                         and is governed by     24.29.206, ARM (1983).
                   Under    24.29.215(1), ARM (1987), Epperson had 90 days from
         the November 27, 1995 "adverse action" to request an administrative
             review. Epperson's January 30, 1996, request was filed 64 days
                after the ERD's order, well within that 90-day time period.
               Epperson's January 30, 1996, filing was both a request for a
                  hearing and, effectively, a waiver of her right to seek
             administrative review. With her right to administrative review
         having been waived, the ERD order became final on January 30, 1996,
              and her appeal was timely under       39-72-612, MCA, since it was
                                     filed that same date.
                    The ERD notice to Epperson of its November 27, 1995 order
            erroneously stated that a failure to request a hearing within 20
           days would make the order final. We hold that under          39-72-612,
           MCA, the 20-day period for requesting a hearing does not commence
         until the order is "final" and that an order is not final until the
           Commissioner has completed her administrative review or until the
                               time for seeking review expires.
                                              Affirmed.

                                                                             /S/      W. WILLIAM LEAPHART

                                                              We concur:

                                                    /S/ J. A. TURNAGE
                                                /S/ WILLIAM E. HUNT, SR.
                                                   /S/ JAMES C. NELSON
                                                     /S/ JIM REGNIER




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