Use Back Button to return to Index of Cases
1999 MTWCC 76
WCC No. 9906-8261
DIANE M. TAVES
AIU INSURANCE COMPANY
BETTER BUSINESS SYSTEMS (CENTRAL PAINT & GLASS)
Summary: Discovery dispute in case where sole issue is whether claimant should be referred to medical center in Denver for treatment of pulmonary condition which insurer accepted as occupational disease. Insurer sought to compel resumption of claimant's deposition, which it terminated without calling the Court, after claimant's counsel advised her not to respond to questions about details of her personal, educational, employment and medical history and suggested calling the WCC for immediate resolution of the issue. Insurer also sought to compel responses to interrogatories about health conditions other than the pulmonary condition, and to compel production of one doctor's file. Sanctions were requested.
Held: WCC refused to order resumption of deposition, finding the questions posed by insurance counsel not reasonably calculated to lead to admissible evidence given the single issue raised and accepted liability status of the case. The Court also noted that respondent's counsel chose to terminate the deposition without calling the Court despite the existence of ARM 24.5.316(8) and despite that counsel's prior experience with immediate telephonic conferences with the WCC judge on discovery disputes. Claimant was ordered to provide basic medical information about other medical conditions from which she now suffers or has suffered since the onset of her pulmonary condition and about medications she has taken since that onset, as other medical conditions and medications, per a doctor's testimony, could impact evaluation and treatment of the respiratory condition. Where doctor's file at issue had already been produced during deposition, motion to compel production of that file was moot, though Court ordered that file sealed as to all persons other than parties, their representatives, and reviewing Court. Request for sanctions denied where claimant's position on discovery was substantially justified.
¶1 Respondent, AIU Insurance Company (AIU), moves to compel claimant to answer deposition questions regarding her personal, educational, employment, and medical history predating her occupational disease claim. It further seeks an Order directing claimant to provide additional medical information and records in response to Interrogatories Nos. 2, 4, 5, and 6 and Request For Production No. 2. (Respondent's Motion to Compel Discovery and Request for Sanctions.)
¶2 Claimant has a chronic pulmonary condition that began in November, 1997. She filed a claim for compensation on November 10, 1997. AIU accepted the claim under the Occupational Disease Act and has paid benefits.
¶3 In her Petition for Trial the claimant requests the Court to order AIU to approve and pay for further medical evaluation and treatment at the National Jewish Medical and Research Center in Denver, Colorado. That is the only issue raised in the petition.
¶4 In its Response to Petition, AIU alleges that the issue is not ripe for judicial review. AIU alleged: "It has been the position of the Insurer ever since the National Jewish Hospital was recommended by Claimant's internist, Dr. Brice Addison, to obtain a second opinion by a pulmonary specialist before deciding upon the appropriateness of that referral." (Response to Petition, ¶ 1(c).) AIU further alleged that claimant had not cooperated with scheduled independent medical examinations, and had unreasonably limited the medical information available to the insurer, thereby preventing it from obtaining a second opinion. (Id. ¶ 1 (e)-(k).)
¶5 On August 23, 1999, claimant was examined by Dr. David Anderson pursuant to an Order Directing Medical Examination issued by the Department of Labor & Industry (Department). Dr. Anderson, a pulmonologist on the Department's panel of occupational disease physicians, reviewed the complete file of claimant's treating physician (Dr. Addison), as well as pulmonary function studies, x-rays, and x-ray reports. (Anderson Dep. at 5-7.) He also took a history from claimant and conducted a complete physical examination, including a test to assess air flows. (Id. at 11.) Dr. Anderson diagnosed
(Id. at 16.) He attributed claimant's pulmonary condition 100 percent to her employment. (Id. at 26.)
¶6 Dr. Anderson was asked about the need for further evaluation or treatment at National Jewish Hospital. He responded that while referral to the hospital might be appropriate at some time in the future such referral was not currently appropriate. (Id. at 27-29.)
¶7 Dr. Anderson made recommendations for specific changes in medications and dosage; his recommendations were adopted by claimant's treating physician. (Id. at 23, 41-43.) He testified that with the recommended treatment "[u]sually one sees improvement within about six weeks and certainly within six months I would expect to see an improvement." (Id. at 35-36.) He said that if this "doesn't work, then I believe it is appropriate for her to go to National Jewish." (Id. at 38.)
Claimant's Deposition Testimony
¶8 On September 8, 1999, claimant was deposed by AIU's attorney, Mr. Donald R. Herndon. During the deposition, Mr. Herndon questioned claimant about her education and employment history as a nurse. Claimant answered his initial questions but her attorney, Mr. Richard J. Martin, objected when Mr. Herndon continued to pursue those areas. Initially, he objected when Mr. Herndon asked, "Who was your principal supervisor at Emanuel [Hospital] in Portland?" (Appendix A to Respondent's Memorandum in Support of Motion to Compel Discovery and for Sanctions (rule ARM 24.5.326) at 7.) When Mr. Herndon asked about claimant's next nursing assignment, Mr. Martin interposed the following objection:
(Id. at 8.)
¶9 Mr. Herndon persisted, questioning claimant about successive jobs as a registered nurse. Mr. Martin instructed claimant not to answer and stated: "Her work history is not relevant. I will instruct her not to answer any more questions about her work history." (Id. at 10.) Mr. Herndon then terminated the deposition:
(Id. at 10-11.)
¶10 Mr. Martin suggested, prior to Mr. Herndon's termination, that counsel call the Court for guidance or ruling on the dispute:
(Respondent's Memorandum in Support of Motion to Compel Discovery and for Sanctions, Ex. A, at 9-10.)
¶11 Rule 24.5.316 expressly provides that motions regarding discovery may be presented informally by telephone conference call, with the possibility of an immediate oral ruling by the Court.(1) Mr. Herndon has previously participated in at least one telephone conference call with the Court over a discovery dispute. That dispute was resolved through immediate ruling and later confirmed by a written order. See Wall v. National Union Fire Insurance Company, WCC No. 9701-7682 (11/22/97).
¶12 AIU now asks the Court to order that the claimant's deposition be reconvened and that she be compelled to testify about her personal, educational, employment, and medical history predating her occupational disease claim. The request is denied. The information sought is not reasonably calculated to lead to admissible evidence. See Rule 26(b)(1), Mont.R.Civ.P.(2) AIU has accepted liability and the only issue raised by the petition concerns Dr. Addison's referral of claimant to National Jewish Hospital. AIU now has the benefit of an IME by Dr. Anderson, who testified prior to claimant's deposition, that a referral to National Jewish Hospital may be appropriate if claimant does not respond to his treatment recommendations. (Anderson Dep. at 28-29, 35-36, 38.) Dr. Anderson's evaluation and testimony raise no issues about the existence of claimant's pulmonary condition or about its relationship to her work. Nothing in his testimony or evaluation indicates that the sort of detailed employment information sought by Mr. Herndon had any potential relevance to his opinions, and AIU has presented no other medical testimony to indicate its potential relevance.
¶13 Mr. Herndon unilaterally terminated the deposition in this case without contacting the Court and I decline to order it resumed. Rule 24.5.322(6) governs suspension of a deposition, providing as follows:
As noted previously, the Court's rules provide for a telephone conference to resolve this sort of issue and Mr. Herndon has participated in such a conference on at least one previous occasion. Instead of requesting a conference so that a ruling might be obtained and the deposition continued at that time, he terminated the deposition. Moreover, given the lack of any apparent relationship between the questions Mr. Herndon insisted on asking and the issue in the case, I find his questions oppressive and grounds for terminating the deposition in any event.
¶14 The interrogatories at issue, along with the initial responses, are as follows:
(Respondent's Memorandum in Support of Motion to Compel Discovery and Sanctions at 7-8, emphasis in original.)
¶15 As a general proposition, AIU is entitled to "health care information which is relevant to the subject matter" in this case. Bowen v. Super Valu Stores, Inc., 229 Mont. 84, 94, 745 P.2d 330, 337 (1986)(emphasis added). Health care information is discover-able so long as the information "sought appears reasonably calculated to lead to the discovery of admissible evidence . . . ." Id. (emphasis added). AIU is entitled to discovery with respect to "prior physical or mental conditions which may relate to the damages [benefits] being claimed in the current action, but is not entitled to unnecessarily invade plaintiff's privacy by exploring totally unrelated or irrelevant matters." State v. District Court, 250 Mont. 524, 530, 822 P.2d 91, 94-95 (1991).
¶16 Claimant's position - that she will reveal only medical information directly relating to her pulmonary condition - is untenable under the foregoing discovery rules. AIU is entitled to discover medical information which is relevant to any medical determination to refer her to National Jewish Hospital. If she suffers from some other medical condition which affects the ability of her Montana treating physician to control her respiratory condition, then AIU is entitled to information concerning that condition so that it can analyze whether other treatment available in Montana is appropriate. Dr. Anderson, for example, testified that stress or anxiety has the potential for impacting respiratory problems. (Anderson Dep. at 33.) He also testified that in evaluating claimant's condition, he solicited and considered information about medications claimant has taken for other conditions since those medications may impact her respiratory problems. (Id. at 32.)
¶17 I conclude that AIU is entitled to basic medical information concerning other medical conditions from which claimant currently suffers or has suffered since the onset of her respiratory condition and to information concerning medications she has taken since the onset of her respiratory condition. Therefore, she shall answer Interrogatory No. 2 in full. She shall further answer Interrogatory No. 5 with respect to all medications she was taking at or after the onset of her respiratory condition. She shall answer Interrogatories Nos. 4 and 5 with respect to all conditions from which she currently suffers or has suffered at any time since the onset of her respiratory condition, with respect to examination or treatment for stress, anxiety or other psychological condition, and with respect to any physician who prescribed any of the medications which she has taken since the date of the onset of her respiratory condition.
¶18 If AIU believes that further medical information may be relevant to the present dispute it may file a further motion. However, any such motion must be supported by specific medical opinions indicating the relevance of the information sought to the medical need to refer claimant to National Jewish Hospital.
Request for Production of Documents
¶19 Respondent has also moved to compel the further production of documents requested in its second request for production. The request and response were as follows:
(Respondent's Memorandum in Support of Motion to Compel Discovery and Sanctions, at 8.) The correspondence referenced in claimant's response indicated that copies of the medical file of Dr. Addison had been provided in redacted form. (Respondent's Memorandum in Support of Motion to Compel Discovery and for Sanctions, Ex. C). When respondent's motion was filed, claimant disputed that AIU was entitled to review Dr. Addison's complete, unredacted file.
¶20 As indicated by recent communications between the parties and Court staff, the dispute over Dr. Addison's file has been resolved in light of production of the complete file during the doctor's deposition. The parties have stipulated, and the Court has ordered, that the deposition of Dr. Addison, together with his attached file, shall be filed with the Court in a sealed envelope, available for inspection only by the parties, their representatives and representatives of this Court, and a reviewing Court on appeal.
¶21 AIU requests sanctions in conjunction with its motion to compel. The request is governed by Rule 24.5.326, which provides:
I find that the claimant's opposition to the requested discovery was substantially justified and that it would be unjust to impose sanctions. The request is denied.
¶22 SO ORDERED.
DATED in Helena, Montana, this 30th day of November, 1999.
c: Mr. Richard J. Martin
1. Rule 24.5.316(8) provides:
2. Rule 26(b)(1) provides in relevant part:
Use Back Button to return to Index of Cases