WCC Denies Request to Keep Asbestos Case in Indefinite Abeyance

Posted by Dean Blackaby | Jan 19, 2015 | 0 Comments


The Montana Workers' Compensation Court recently issued a new opinion in Larson v. Montana State Fund.  Larson sought to have his occupational disease claim to be dismissed without prejudice or alternatively, to put the matter in abeyance.   The insurer, Montana State Fund, objected.

In making his request, Larson challenged the Court's jurisdiction over the matter arguing that no benefits were in dispute in that Larson was not seeking medical benefits since his medical bills were being paid through Medicare.  Larson had originally filed a Petition for Hearing seeking a determination of liability on the part of MSF and requesting that MSF be ordered to pay reasonable medical expenses in additional to a penalty and fees for unreasonable conduct.  He then subsequently filed a motion challenging the jurisdiction and alternatively, if jurisdiction existed, an indefinite abeyance.

MSF objected arguing that by seeking a determination of liability, Larson was in fact seeking benefits.  Clearly, one of the few viable defenses in recent days to asbestos cases is the statute of limitations.  The claim was denied and Larson was seeking to avoid the impact of Section 39-71-2905, MCA which establishes a statute of limitations of two years from the date of denial.

Judge Sandler disagreed with Larson's jurisdiction argument finding that a dispute over the liability of a claim was in point of fact, a dispute over benefits conferring jurisdiction to the Court.  The fact that Larson's medical bills were being paid by Medicare through the Lincoln County program (referred to in the decision as the "Libby Medicare plan") was of no consequence as the Court correctly identified it as a secondary payer under the Medicare Secondary Payer Act.

Similarly, the Court rejected the alternative request for an "abeyance" finding no such authority when the "abeyance" is opposed by a party.  The Court noted that insurers are also entitled to a "timely day in court."  The Court also agreed with the MSF argument that given the complexity of asbestos cases and the frequency of "last injurious exposure" analysis in such cases, relevant evidence could be lost by indefinite delay.

Of note was the quick turnaround on the decision.  The matter was submitted on December 22nd and decision issued January 16th.

Submitted: 12/22/14     Issued: 1/16/15

Attorneys for Larson:  Laurie Wallace, Jon Heberling and Ethan Welder.

Attorney for MSF:  Tom Martello

About the Author

Dean Blackaby

Attorney representing individuals hurt at work; mediation of workers' compensation disputes; settlement consultant focusing on Medicare Secondary Payer compliance and Medicare set-asides.


There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment


Since 1996, Montana Work Comp Solutions has been creating options for parties in dispute. Removing barriers, solving problems. Attorney Dean Blackaby is committed to generating the best result based on the facts and the goals of his client. All fees for injured workers are contingent fees regulated by the Montana Department of Labor. Fees are collected based on the benefits obtained by the attorney. Fees for mediation and settlement consultation are based on hourly charges.


The Montana Workers' Compensation Act is a complex mixture of statutes, case law and local custom. You should seek the advice of an experienced attorney who has worked on all sides of the Montana system. Call Toll Free 888.779.1898 for a FREE CONSULTATION.