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2002 MTWCC 54
WCC No. 2002-0636
Summary: Insurer moves for summary judgment with respect to its liability for a shoulder condition, urging that claimant's current condition (Parsonage Turner Syndrome) is not one for which it accepted liability (shoulder strain or tendinitis) and is unrelated to his employment, or, alternatively, that its acceptance of liability for claimant's shoulder complaints was based on a mutual mistake of fact. The claimant resists the motion arguing, among other things, that the deposition of claimant's treating physician, which is scheduled to take place a week after the motion was submitted for decision, will establish that claimant's employment aggravated, worsened, or lit up his current condition.
Held: Even though claimant has not submitted any affidavit raising an issue of fact concerning his aggravation claim, it is appropriate under Rule 24.5.329(8) to postpone consideration of the motion until claimant can take the doctor's deposition. Since the submission of the motion and the doctor's deposition are so close to trial, the Court not only postpones consideration of the motion but denies it without prejudice since it will be just as expeditious to proceed with trial before addressing the issues raised by the motion.
¶1 This is an accepted liability case, however, the respondent/insurer now denies liability on the ground that both parties were mistaken about the nature and cause of the claimant's shoulder condition. His condition was initially thought to be a strain or tendinitis of the shoulder, but both parties now agree claimant suffers from Parsonage Turner Syndrome, a condition which the claimant's treating physician, as well as an IME physician, opined is unrelated to his employment. Respondent now moves for summary judgment urging that it accepted liability only for the tendinitis and is not responsible for his continuing condition. In the alternative it urges mutual mistake of fact as grounds for relieving it from its initial acceptance.
¶2 Respondent argues, among other things, that even assuming respondent's legal grounds are sound, there is nonetheless a dispute of material fact as to whether claimant's "condition was aggravated, accelerated, or lit-up by his employment." (Petitioner's Response to Respondent's Motion for Summary Judgment at 2.) He says that aggravation "will be addressed in the deposition of Bret Lindsay, M.D., on November 6, 2002." (Id.)
¶3 Respondent is correct in its assertion in its Reply Brief that unsupported statements by counsel do not create genuine issues of fact, Heibert v. Cascade County, 2002 MT 233, ¶ 21. However, Rule 24.5.329 allows the Court to refuse or postpone summary judgment where a party is unable to timely provide a sworn affidavit raising genuine issues of fact. Subsection (8) states:
An affidavit of claimant's counsel states that he has scheduled Dr. Lindsay's deposition for November 6, 2002. (Seaman Affidavit, ¶ 9.) While it does not technically comply with the rule in that it does not state why he could not present an affidavit by Dr. Lindsay which supports his aggravation claim, the Court also recognizes that workers' compensation cases are tried on an expedited basis and that it is often difficult to obtain evidence from and schedule depositions of doctors. There is no claim by respondent that claimant has unduly delayed scheduling Dr. Lindsay's deposition. Had the deposition been obtained prior to submission of the motion for decision, any testimony the doctor gave would be considered. I therefore find good cause to allow the deposition to proceed and to postpone consideration of the motion until the doctor's testimony can be submitted.
¶4 Moreover, since the motion is submitted for decision rather late in the pretrial process - a mere 13 days before trial, I find it appropriate to invoke subsection (1)(b) of Rule 24.5.329, which provides:
Trial shall therefore proceed as scheduled if the parties have anything more to offer the Court by way of evidence in addition to that offered through the affidavits and Dr. Lindsay's deposition.
¶5 Accordingly, the motion for summary judgment is denied for procedural reasons and without addressing the merits of the matters raised therein.
DATED in Helena, Montana, this 31st day of October, 2002.
c: Mr. Garry D. Seaman
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