94-0720. DAVID K. HOTH vs. EDO WESTERN CORPORATION and RELIANCE INSURANCE CO. Defendants.

CourtUtah
Utah Workers Compensation Decisions 1995. 94-0720. DAVID K. HOTH vs. EDO WESTERN CORPORATION and RELIANCE INSURANCE CO. Defendants THE INDUSTRIAL COMMISSION OF UTAHDAVID K. HOTH, Applicant, vs. EDO WESTERN CORPORATION and RELIANCE INSURANCE CO., Defendants.Case No. 94-0720ORDER OF REMANDDavid K. Hoth asks The Industrial Commission of Utah to review the Administrative Law Judge's dismissal of Mr. Hoth's claim for benefits under the Utah Occupational Disease Act. The ALJ dismissed Mr. Hoth's claim pursuant to the motion for summary judgment of Edo Western Corporation and its insurance carrier, Reliance Insurance Co. (referred to jointly as "Edo Western" hereafter). The Industrial Commission exercises jurisdiction over this motion for review pursuant to Utah Code Ann. §63-46b-12, Utah Code Ann. §35-2-102(2), Utah Code 35-1-82.53, and Utah Admin. Code R568-1-4.M. ISSUE UNDER REVIEW Do undisputed facts show that Mr. Hoth failed to notify his employer of his occupational disease claim within 180 days after the claim arose. BACKGROUND Mr. Hoth filed a claim with the Industrial Commission for benefits under the Utah Occupational Disease Act ("the Act"), alleging he suffered from mental stress as a result of his work at Edo Western. Edo Western filed a motion for summary judgment against Mr. Hoth, alleging that because Mr. Hoth did not notify Edo Western of his occupational disease claim within 180 days after the claim arose, the claim was barred by §35-2-103(2) of the Act. The ALJ granted Edo Western's motion for summary judgment. Mr. Hoth then filed his motion for review with the Industrial Commission. APPLICABLE LAW Section 35-2-103(2) of the Act provides in material part as follows:
Any employee who fails to notify his employer or the commission within 180 days after the cause of action arises is barred from any claim of benefits arising from the occupational disease. The cause of action is considered to arise on the date the employee first suffered disability from the occupational disease and knew, or in the exercise of reasonable diligence should have known, that the occupational disease was caused by employment.
Section 63-46b-1(4)(b) of the Utah Administrative Procedures Act authorizes the Industrial Commission to grant motions for summary judgment pursuant to the requirements of Utah Rules of Civil Procedure ("U.R.C.P.")...

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