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, 1992 

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 

education and marketable ~kills.~ Pursuant to 5 39-71-1018, MCA 

(1989), the Department adopted the panel recommendations, and on 

June 5, 1991, issued an initial order of determination. Claimant 

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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 

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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~artment under 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 f inned. 
We concur: 
November 24, 1992 

CERTIFICATE OF 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 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA