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1994 MTWCC 89

WCC No. 9407-7090





Respondent/Insurer for




Petitioner, Bobi Jo Cary (claimant), has filed a motion to compel the respondent to fully and properly respond to "Claimant's Request for Production Nos. 2 and 3." Specifically in question are the documents contained in Exhibit B-2 and Exhibit C-2. Respondent's answer brief with attached exhibits for an in camera inspection were filed on September 12, 1994, and claimant's reply brief was filed on September 14, 1994.

In recent discovery orders, the Court has discussed the protection afforded by attorney/client privilege and the work-product doctrine. Blount v. Conagra, Inc., WCC No. 9304-6769 (March 16, 1994); Adels v. Cigna Insurance Co., WCC No. 9307-6831, Order Amending Prior Order Denying Motion to Compel, (March 10, 1994) and Yager v. Montana Schools Group Insurance, WCC No. 9308-6872 (March 14, 1994). The review herein has been conducted pursuant to the guidelines set out in those decisions and the Court will not engage in a document by document discussion of the reasons for its determinations.

Claimant has made a broad request for all of the withheld documents, focusing on the primary issues of the her entitlement to further medical care, temporary total disability benefits and total rehabilitation benefits as a result of the July 24, 1992 injury. (Claimant's Motion to Compel) Also at issue is the question of the penalty.

Respondent asserts that the documents requested are protected by the attorney/client privilege and/or work-product doctrines relying on the Palmer v. Famers Insurance Exchange, 261 Mont. 91, 861 P.2d 895; Kuiper v. District Court, 193 Mont. 452, 465, 632 P.2d 694 (1981) and Cantrell v. Henderson, 221 Mont. 201, 718 P.2d 318 (1986). As noted in Adels, supra, "These cases do not hold that work product protection never applies to insurers' claim files, only that it does not automatically apply." In Burlington Northern v. District Court , 239 Mont 207, 216, 779 P.2d 885 (1989), the Supreme Court noted that "no absolute rule can be formed to apply to every case" and that "a balance must be sought which requires appropriate disclosure of facts, without allowing a party to build its case on the other party's efforts." Again it is noted that the primary issue in this matter is the claimant's entitlement to benefits. This Court in Adels v. Cigna Insurance Co., WCC No. 9307-6831, Order Denying Motion to Compel; Order Bifurcating Issues (February 16, 1994) held:

However, the claimant must prove his entitlement to benefits as a prerequisite to any penalty. Section 39-71-2907, MCA. His interest in the documents is therefore a contingent one which can be safeguarded by bifurcating the penalty issue from the underlying claims. Bifurcation is expressly countenanced in bad faith actions against insurers. It is permitted in any action brought by an insured "where justice so requires" and is mandatory in a third party action against an insurer. Section 33-18-242(6), MCA. While the cited section does not govern a request for a penalty under the Workers' Compensation Act, it does provide both a precedent and guidance for reconciling the conflicting interests presented in this case.

In the event petitioner prevails on her claim for benefits, the Court will again review the documents it has determined to be protected, order their disclosure if appropriate, and schedule an expedited hearing to resolve the penalty issue.

Two sets of documents, comprising approximately 275 pages were submitted to the Court. Respondent failed to include the following pages in Exhibit B-2: 219, 268, 294 and 382. These pages must be forwarded to the Court immediately. The hearing examiner has determined the status of each document as follows:

Exhibit B-2


135-136 Attorney/client privilege
158 Attorney/client privilege
219-220 Must be forwarded to the Court for review
227-229 Attorney/client privilege
251 Attorney/client privilege
254 Attorney/client privilege
256 Attorney/client privilege
260-261 Attorney/client privilege
268 Must be forwarded to the Court for review
292-293 Attorney/client privilege
294 Must be forwarded to the Court for review
378 Attorney/client privilege
380-381 Attorney/client privilege
382-383 Must be forwarded to the Court for review
384-387 Work product
437-439 Discoverable by claimant
453-454 Discoverable by claimant
476 Discoverable by claimant
481-482 Discoverable by claimant
503 Discoverable by claimant
507-509 Discoverable by claimant
555-557 Discoverable by claimant
561-562 Discoverable by claimant
588 Discoverable by claimant
594-596 Discoverable by claimant
633 Discoverable by claimant
638-639 Discoverable by claimant
664 Discoverable by claimant
669-669 Discoverable by claimant
684-685 Discoverable by claimant
705-706 Discoverable by claimant
742-743 Discoverable by claimant
753 Discoverable by claimant
759-760 Discoverable by claimant
822-823 Discoverable by claimant
830 Discoverable by claimant
834 Discoverable by claimant
842 Discoverable by claimant
852-853 Discoverable by claimant
942-943 Discoverable by claimant
977-979 Discoverable by claimant
1016 Discoverable by claimant
1030-1043 Work product
1044-1069 Discoverable by claimant

Exhibit C-2

1076-1077 Attorney/client privilege
1080-1082 Attorney/client privilege
1090 Attorney/client privilege
1112-1113 Attorney/client privilege
1127-1137 Attorney/client privilege
1138 Discoverable by claimant
1139 Attorney/client privilege
1141 Attorney/client privilege
1143-1144 Attorney/client privilege
1189-1190 Attorney/client privilege
1193-1194 Attorney/client privilege
1220-1223 Work product
1268-1274 Discoverable by claimant
1281-1282 Discoverable by claimant
1299-1300 Discoverable by claimant
1314-1321 Discoverable by claimant
1360-1364 Discoverable by claimant
1385-1391 Discoverable by claimant
1411-1412 Discoverable by claimant
1423-1424 Discoverable by claimant
1442-1444 Discoverable by claimant
1454-1460 Discoverable by claimant
1474-1480 Discoverable by claimant
1487-1489 Discoverable by claimant
1512-1513 Discoverable by claimant
1529-1537 Discoverable by claimant
1544-1545 Discoverable by claimant
1567-1569 Discoverable by claimant
1590 Discoverable by claimant
1605-1614 Discoverable by claimant
1620, 1639, 1646, 1653 & 1654 Irrelevant
1669 Discoverable by claimant
1672 Discoverable by claimant
1676 Irrelevant
1688-1708 Discoverable by claimant
1709 Information prior to date of 4/19/94 discoverable. Other information within document subject to work product.
1710-1717 Work product - attorney/client privilege

In summary, on or before September 30, 1994, respondent shall provide all of those documents identified as being "discoverable by claimant" to the petitioner.

Respondent shall also produce for an in camera inspection by the Court those pages of Exhibit B-2, numbered 219-220, 268, 294 and 382-383.

THEREFORE, IT IS HEREBY ORDERED that the claimant's motion to compel production is granted as to those specific documents which are identified in this Order , and is denied as to the remainder of the documents.

This Order is authorized by the Judge of the Workers' Compensation Court and signed at his direction.

DATED in Helena, Montana, this 23rd day of September, 1994.


/S/ Clarice V. Beck
Hearing Examiner

c: Mr. Thomas A. Marra
Mr. J. David Slovak

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