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Williams Insulation Company6/7/2002
DECISION ON APPEAL
This case is on appeal from a decision of the Department of Labor and Industry (Department) assessing a penalty of $94,484.86 against the appellant, Williams Insulation Company, Incorporated (Williams). The penalty was levied pursuant to section 39-71-504(1)(a), MCA, which provides for penalties against uninsured employers:
(1) (a) The department may require that the uninsured employer pay to the fund a penalty of either up to double the premium amount the employer would have paid on the payroll of the employer's workers in this state if the employer had been enrolled with compensation plan No. 3 or $200, whichever is greater. In determining the premium amount for the calculation of the penalty under this subsection, the department shall make an assessment based on how much premium would have been paid on the employer's past 3-year payroll for periods within the 3 years when the employer was uninsured.
Although insured in Wyoming, Williams was not insured in Montana and was not entitled to reciprocity since it was engaged in the construction industry. Section 39-71-402(5), MCA, provides:
(5) Employers from another state that are engaged in the construction industry, as defined in 39-71-116, and that employ workers from another state shall obtain coverage for those workers under the provisions of this chapter.
Williams requested a contested case hearing before the Department. Rather than proceeding with an actual hearing, Williams and the Department agreed to submit the case to a Department hearing officer upon their briefs and documents on file with the Department. On November 21, 2001, the hearing officer entered his decision assessing the $94,484.86 penalty.
Williams then filed an appeal with this Court. The Notice of Appeal, filed December 5, 2001, set forth the following grounds:
The hearing examiner erred by ruling that Respondent, Williams Insulation Company, Inc. had not been denied its opportunity to be heard and participate in the agency's initial decision process. Further, the hearing examiner erred by determining that Respondent owed the Uninsured Employers Fund money and a penalty. (Notice of Appeal at 1-2.)
What you see is what you get: Williams provided no elaboration of the basis for appeal. The foregoing quoted paragraph constitutes the entire basis for the appeal.
After setting a briefing schedule, Williams filed its initial brief, styled "Plaintiff's Initial Brief." It found "no need to submit a reply brief" after the Department filed its answer brief. (April 1, 2002 letter of Mr. John C. Doubek.)
In its brief, Williams argues that it was denied an opportunity to participate in the process leading up to the Department's initial determination regarding the penalty, and that it was prejudiced by the failure even though it was later afforded an opportunity for a contested case hearing. Second, it argues that the assessment of the penalty was contrary to law since Williams was insured in Wyoming and the claimant was covered by Wyoming workers' compensation statutes.
Initially, I note Williams' assertion that the worker whose claim brought on this proceeding was turned down for Wyoming benefits because he "did not timely notify the Workers' Compensation division in Wyoming of this claim." (Plaintiff's Initial Brief at 3.) Williams goes on to argue, "What has occurred here is that an employee is searching for some venue to achieve some remedy when his remedy is set forth in Wyoming law that his claim must be submitted to the Wyoming Workers' Compensation division." (Id. at 3-4.) These statements misrepresent the facts an
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