No. 86-595 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

MICHAEL J. O'DONNELL, 

Claimant and Appellant, 

-vsRYANS, 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 - sua sponte. 

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 -A benefits, may be increased by the 

workers ' compensation - judg; by 20%. The question 

- of unreasonable delay - or refusal shall be - 

determe -- 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&bM~ 

Justices