<%@LANGUAGE="JAVASCRIPT" CODEPAGE="1252"%> Mary Bry

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IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA

2004 MTWCC 18

WCC No. 2002-0633


AMERICAN HOME ASSURANCE COMPANY

Petitioner

vs.

MARY BRY

Respondent.


DECISION AND ORDER REGARDING FURTHER PROCEEDINGS

Summary: After denying a claim for compensation, the insurer petitioned the Court for an order directing the claimant to cooperate in its further investigation of the claim and to ultimately determine whether the claim is compensable. The claimant appeared pro' se and failed to respond to discovery. After numerous procedural delays, the insurer moved to compel answers to its discovery.

Held: Unless the claimant wishes to seek benefits in the present case, the petition must be dismissed as a "pre-emptive strike" by the insurer. If the claimant wishes to proceed then she must provide all information, including medical information, which is relevant to her claim or which may lead to admissible evidence regarding her claim.

Topics:

Jurisdiction: Pre-emptive Strikes. Where insurer has denied liability the Court will not consider the insurer's petition to compel claimant's cooperation in the further investigation and determine its liability.

Jurisdiction: Standing: Insurers. Where insurer has denied liability the Court will not consider the insurer's petition to compel the claimant's cooperation in the further investigation and determine its liability.

Declaratory Judgment: Pre-emptive strikes. Where insurer has denied liability the Court will not consider the insurer's petition to compel the claimant's cooperation in the further investigation and determine its liability.

Medical Records: Confidentiality. In pursuing a workers' compensation claim, the claimant waives any right to confidentiality regarding medical records which are relevant to her claim or which may lead to discoverable evidence regarding the issues raised by her claim.

Discovery: Privileges: Medical Information. In pursuing a workers' compensation claim, the claimant waives any right to confidentiality regarding medical records which are relevant to her claim or which may lead to discoverable evidence regarding the issues raised by her claim.

Discovery: Privileges: Waiver. In pursuing a petition for benefits, the claimant generally waives any claim of confidentiality concerning information which is relevant to her claim or which may lead to admissible evidence.

Introduction and Background

1 The Court file in this matter was brought to my attention by my hearing examiner on account of a discovery dispute. After reviewing the file, I note a more fundamental issue regarding jurisdiction.

2 The petition in this case was filed by the insurer. As I read the petition, the insurer has denied liability for a claim filed by the respondent Mary Bry (hereinafter claimant) but is further investigating the claim. Citing claimant's "non-cooperation" with its further investigation, the insurer requests the Court to order the claimant to cooperate and to ultimately determine its liability for her claim.

3 On its face, the petition is a "pre-emptive strike" of the same sort condemned in Champion International Corp. v. Brennan, WCC No. 9504-7269 (June 13, 1995); Lumbermens Mutual Casualty Co. v. Mares, WCC No. 9707-7782, Order Dismissing Petition (September 19, 1997); and Liberty Northwest Ins. Corp., 1998 MTWCC 56. In the cited cases, I held that a cause of action for benefits belongs to the claimant and the insurer cannot bring a declaratory judgment action which in effect forces the claimant to adjudicate her claim.

4 In Brennan I dismissed an insurer's petition seeking a determination that the claimant was not entitled to further benefits: at the time of the petition the insurer was not paying benefits and denied liability for any further benefits. In dismissing the petition, I held:

The cause of action in this case belongs to the claimant, not to the insurer. It is he who, under the Workers' Compensation Act, may be entitled to benefits for work-related injuries. Thus, the insurer's petition is one for declaratory judgment. "The purpose of declaratory relief is to liquidate uncertainties and controversies which might result in future litigation and to adjudicate rights of parties who have not otherwise been given an opportunity to have those rights determined." In re Dewar, 169 Mont. 437, 444, 548 P.2d 155 (1976) (emphasis added). Courts are not required to entertain every action for declaratory judgment. Even though all of the necessary elements of jurisdiction exist, the Court may, in its sound discretion, dismiss the action. (Brisendine v. Montana Department of Commerce), 253 Mont. 361, 364, 833 P.2d 1019 (1992).

Brennan at 2 (quoted at 2 in Mares).

5 In Mares the insurer sought a determination that it was not liable for the claimant's current medical and psychological condition. As in Brennan, the insurer was not paying the benefits because it disputed its liability for them. Citing Brennan, I dismissed the petition.

6 In Liberty Northwest Ins. Corp. v. Shana Behr, the claimant had allegedly waived her entitlement to workers' compensation benefits and had brought a tort action against her employer. The employer's insurer then petitioned the Court requesting a determination as to whether the claimant could waive her claim for compensation. 1998 MTWCC 56, 2. The claimant replied that she was not seeking workers' compensation benefits and expressly stated that she withdrew and waived her claim. Id. at 3. As in Brennan and Mares, I dismissed, holding that an insurer cannot use a declaratory judgment action to force a claimant to litigate a potential claim for benefits.

7 The petition in this case was filed on August 23, 2002, by the insurer against the claimant. The claimant has represented herself throughout these proceedings.

8 The petition alleges that the claimant filed a claim for a low-back injury occurring on or about July 23, 2001, but further alleges the claimant had at least two prior industrial injuries involving her low back, one on or about May 4, 1997, and the other on October 11, 1997. The insurer alleges that the claimant has failed to cooperate with its investigation of her present claim. In particular, it alleges she has not cooperated with its attempt to obtain information about prior low-back injuries and medical care. It seeks to compel her cooperation with its investigation and further asks the Court to determine whether it is liable for her claim.

9 I did not appreciate the nature of this proceeding until my recent file review. I did hold a telephone conference call with the claimant and counsel for the insurer on September 23, 2002. That conference concerned the claimant's objection to a scheduled deposition (see Court file face sheet), but my minute entry regarding the conference indicates that I only addressed the claimant's request for additional time to find an attorney. I undoubtedly did a quick review of the file at that time but the nature of the proceeding obviously did not register with me.

10 My current file review is a more serious and in-depth review since the pending discovery dispute requires formal resolution. Specifically, the insurer is seeking to compel answers to interrogatories propounded March 10, 2003.

11 The motion to compel answers to the discovery was not filed until December 22, 2003. However, the delay in bringing the motion is explained by the fact that for several months the parties on their own were attempting to resolve the dispute and the claimant was attempting to find an attorney. The procedural history is set out below:

11a After initial efforts to resolve the case were unfruitful, the hearing examiner directed the claimant to respond to the petition, which she did on January 27, 2003. The claimant asserted, among other things, that she had signed papers giving the insurer access to her prior back injuries and that she would sign medical releases "only pertaining to my back area injuries." She asserted that investigation of any and all of her medical problems unrelated to her back constituted an invasion of privacy. Finally, she asserted that the injury at issue was a new injury and caused her permanent disability.

11b On March 10, 2003, the insurer served Petitioner/Insurer's First Set of Combined Discovery Requests to Respondent.

11c On July 15, 2003, new counsel appeared on behalf of the insurer.

11d On December 22, 2003, the insurer filed a motion to compel answers to its March 10, 2003 discovery. According to the motion, the claimant never responded to its March 10, 2003 discovery requests.

12 On January 2, 2004, a telephone conference was held by the Court's hearing examiner with the claimant and Mr. Charles G. Adams, counsel for the petitioner, regarding both the motion to compel discovery and a motion filed by the insurer to continue the trial setting. Given that the discovery requests had been drafted by earlier counsel, that the claimant continued to object to portions of the discovery as not related to her present claim, and that some discovery requests appeared overly-broad, the hearing examiner requested Mr. Adams to delineate the discovery requests he now wanted the claimant to answer.

13 By letter dated January 26, 2004, the insurer requested the Court to compel the claimant to provide the following information:

13a A list of her medical providers over the course of her life.

13b A list of any and all insurance claims she has filed.

13c Information about the her past and current employment, including (a) whom claimant has worked for; (b) in what capacity, and (c) for what periods of time.

13d A list of any other accidents or physical problems she has suffered in the last ten years.

It was after this letter that the motion to compel was brought to my attention and I did an in-depth file review.

Discussion

14 While the petition in this case seeks affirmative relief in the form of an order to compel the cooperation of the claimant, and therefore differs in that sense from the actions in Brennan, Mares, and Behr, the ultimate goal of the insurer is to have the Court determine its liability for benefits even though it has denied the claim and is not paying benefits. Thus, it is the same sort of pre-emptive strike condemned in the cited cases.

15 As held in Brennan, Mares, and Behr, where the insurer denies liability it cannot compel the claimant to litigate her claim. If the claimant has provided the insurer with insufficient information to support her claim and refuses to cooperate with the insurer's investigation, the insurer is fully justified in denying her claim and standing by its denial. The petition in this case should have therefore been dismissed long ago.

16 However, this case has been pending for some time and the claimant has filed a response in which she asserts she is entitled to benefits. I can treat that response as a counter-petition seeking adjudication of her claim, but I am reluctant to do so unless that indeed is her intent. She is an involuntary party and has resisted and objected to the discovery sought by the insurer. To date she has not been informed that she is entitled to dismissal of the petition if she does not wish to litigate her claim. Through this Order I am notifying her of that right. She may also choose to have the Court treat her response as submitting her claim to the jurisdiction of the Court for determination of whether she is entitled to workers' compensation benefits.

17 In considering whether she wishes to pursue a claim for benefits at the present time, the Court must advise the claimant that should she seek and obtain dismissal of the insurer's petition and later on decide to bring her own petition for benefits, such later petition may be barred by the statute of limitations found in section 39-71-2905(2), MCA (2001). That statute provides:(1)

(2) A petition for hearing before the workers' compensation judge must be filed within 2 years after benefits are denied.

She should therefore understand that should she not wish to pursue benefits in connection with the present proceeding, she may never be able to do so.

18 In the event the claimant decides to pursue benefits in this case, the insurer is entitled to her full cooperation in obtaining information which pertains to her claim. I recently outlined the claimant's obligation to disclose medical information in Thompson v. Montana State Fund, 2004 MTWCC 14. A copy of that decision shall be provided to the claimant.

19 In Thompson I pointed out that a claimant waives any claim of confidentiality concerning healthcare information which may lead to the discovery of evidence relevant to the claim:

4 In pursuing his claim for compensation, the claimant waives "any privilege or claim of confidentiality in health care information which is relevant to the subject matter involved in his claim." Bowen v. Super Valu Stores, Inc., 229 Mont. 84, 94, 745 P.2d 330, 337 (1987). Moreover, statutes governing workers' compensation claims and the rules of this Court require the claimant to disclose all medical information relevant to his claim.

Id. at 4. She also waives confidentiality concerning other information, privileged and non-privileged, which is relevant to the claim. 39-71-604(1), MCA (1999), ("If a worker is entitled to benefits under this chapter, the worker shall file with the insurer all reasonable information needed by the insurer to determine compensability.") Dion v. Nationwide Mutual Ins. Co., 185 F.R.D. 288, 294 (Dist. Mont. 1998) (No. CV-95-122-GF.) ("A privilege may also be impliedly waived where a party makes assertions in the litigation or 'asserts a claim that in fairness requires examination of the protected communications.'" ).

20 Therefore, if Ms. Bry desires to pursue her claim she must provide full and informative responses to discovery which is reasonably calculated to obtain information that may lead to admissible evidence. "It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Rule 26(b)(1), Mont.R.Civ.P.

21 I have reviewed the specific information sought by the insurer in its January 26, 2004 letter. I find the requested information is "reasonably calculated to lead to the discovery of admissible evidence."

22 The list of medical providers requested by the insurer may identify medical providers who have treated the claimant for conditions wholly unrelated to her claim in this case, however, identification of providers may also lead to discovery of admissible evidence. For example, if the medical providers who have treated the claimant include chiropractors, orthopedic surgeons, and physiatrists, the very nature of those providers' specialties suggest the possibility that the claimant may have been treated for back problems. Even though an insurer is responsible for aggravations of pre-existing conditions, it is not responsible for non-material aggravations. See e.g., Caekart v. State Compensation Ins. Fund, 268 Mont. 105, 885 P.2d 495 (1994); Watkins v. State Compensation Ins. Fund, 2002 MTWCC 11. The claimant's prior back problems are therefore potentially relevant. The insurer is not presently seeking medical records, so I do not need to address whether there is a sufficient basis for compelling disclosure of those records.

23 Identification of prior workers' compensation claims may also lead to admissible evidence. If those claims involve back injuries, those injuries may raise issues concerning which insurer is liable for the claimant's current back condition. See Belton v. Carlson Transport, 202 Mont. 384, 658 P.2d 405 (1983).

24 Identification of the claimant's prior employers provides background information which might lead to further information concerning the claimant's history of back injuries or disease. Ultimately, the information may also be relevant to any claim for permanent disability benefits.

25 Finally, a list of other accidents and injuries the claimant has suffered is plainly calculated to identify information which may lead to further information concerning prior back injuries. The relevancy of those back injuries is addressed in paragraph 22.

26 Accordingly, if the claimant intends to pursue her claim for compensation, she must furnish the information requested by the insurer in its January 26, 2004 letter, and do so within twenty days of this Order.

ORDER

27 The claimant shall notify the Court and the petitioner's attorney, in writing, no later than March 10, 2004, whether she wishes to pursue her claim for compensation in this proceeding. If she does not wish to do so, the petition in this case shall be dismissed.

28 If the claimant wishes to pursue her claim in this proceeding, she shall respond, in writing and under oath, to the following requests for information:

28a List the name and address of all medical providers who have treated you during the past 15 years.

28b List all workers' compensation, personal injury, and disability claims you have filed, including the date of each claim and the nature of each claim.

28c List the name and address of your current employer and all of your past employers, the dates of your employment with each, and your position with each one.

28d List all accidents and physical problems you have suffered in the last ten years and provide the date and nature of each.

The claimant's answers must be filed with the Court and served on the insurer's attorney by March 19, 2004.

29 The January 2, 2004 Order Resetting Scheduling Order is vacated. If the claimant states her intent to pursue her claim in this proceeding, a new scheduling order will issue at that time.

DATED in Helena, Montana, this 27th day of February, 2004.

(SEAL)

\s\ Mike McCarter
JUDGE

c: Mr. Charles G. Adams
Ms. Mary Bry
Attachment: Thompson v. Montana State Fund, 2004 MTWCC 14

1. This advice is required for reasons of fairness and justice since the time for the claimant bringing her own petition may have already expired. The Court cannot in good conscience dismiss the petition at this point of time without telling the claimant, who is unrepresented, of the possible consequences of dismissal.

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