No. 86-595 IN THE SUPREMECOURT OF THE STATE OF MONTANA 1987

MICHAEL J. O'DONNELL, Claimant and Appellant,-vsRYANS, INC., Employer, and STATE COMPENSATION INSURANCEFUND, Defendantand Respondent.

APPEAL FROM: TheWorkers' Compensation Court, The Honorable Timothy Reardon, Judge presiding. COUNSEL OF RECORD: ForAppellant: 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 13

### 1987

*# ClerkMr. Justice Fred J. Weber delivered the Opinion of the Court. Claimant, Michael J. O'Donnell appeals the order of a hearings examiner for theWorkers' CompensationCourtdenying 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 Courtwill now decide iswhether we have jurisdictionto consider an appeal of an order issuedby a hearings examiner for the Workers' Compensation Court. Since we hold thatwe do not,we are barred from considering the issuesraised 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 treatmentof 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 decisionwas 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 orderdenying 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 doesnot object to claimant's procedure. However, wewill 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 sponteby the court. Statev. Davis (Mont. 1984), 681 P.2d 42, 43, 41 St.Rep. 898, 899. Section 39-71-2904,MCA,provides that "anappeal froma 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 unreasonabledelay or refusal topay. 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~ensationbenefits, may be increased by the

-A workers

### ' compensation -judg; by 20%. The question of unreasonable delay or refusal shall be 

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## - - determe 

### -- workers' compensationjudge

# .. . (Emphasissupplied.) 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: /



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Justices