<%@LANGUAGE="JAVASCRIPT" CODEPAGE="1252"%> Lennie J. Thompson

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IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA

2004 MTWCC 14

WCC No. 2003-0901


LENNIE J. THOMPSON

Petitioner

vs.

MONTANA STATE FUND

Respondent/Insurer.


DECISION AND ORDER COMPELLING PRODUCTION OF CLAIMS FILES

Summary: Claimant filed a petition seeking medical benefits for a low-back injury he suffered in 1996. The insurer subpoenaed the claim files of another insurer. Claimant objected, asserting that the medical records contained in those files are confidential.

Held: Two of the claims involved in the dispute were for subsequent low-back injuries and are clearly relevant to the claimant's present pursuit of medical benefits. The third involves a fall which could conceivably involve injury to the back, therefore the records in that case could lead to discoverable evidence. In pursuing his present petition, the claimant waives any claim of confidentiality to those records.

Topics:

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

Appeals (to Supreme Court). Since claimant is not required to pursue his claim, in lieu of an order compelling production of files containing medical information, proceedings shall be stayed until claimant agrees to the release of the records or until he appeals and the Supreme Court orders otherwise. See Bowen v. Super Valu Stores, Inc., 229 Mont. 84, 94, 745 P.2d 330, 337 (1987).

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

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

1 Respondent, Montana State Fund (State Fund), sought discovery of the files of Liberty Northwest Insurance Corporation (Liberty) for workers' compensation claims filed by the claimant. It issued a subpoena duces tecum for the files. The claimant objected to the discovery but by arrangement with the Court the files were produced and submitted directly to the Court. Petitioner thereafter filed a Motion to Deny the State Fund Access to Medical Findings and Records. The motion is attached to this Order. As can be seen, it is rambling, unfocused, and accusatory in nature.

Discussion

2 I limit my discussion to the claimant's opposition to the production of Liberty's files since those are the only files the State Fund is seeking at present. The claimant's other arguments appear to be evidentiary objections which should be interposed in accordance with Rule 24.5.317(3) or by way of objection to testimony at trial or deposition. They are not properly before me at this time.

3 According to the Petition for Hearing, the claim at issue here is for a 1996 low-back injury. The State Fund was at risk at the time of the injury and accepted liability for the claim. At issue are medical benefits the claimant asserts are due him.

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.

5 Section 39-71-604, MCA, specifically requires the claimant to disclose all medical information relevant to his injury and authorizes the insurer to obtain the information. In 1996, when the claimant suffered his State Fund injury, the section provided:

39-71-604.   Application for compensation. (1) 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. It is the duty of the worker's attending physician to lend all necessary assistance in making application for compensation and such proof of other matters as may be required by the rules of the department without charge to the worker. The filing of forms or other documentation by the attending physician does not constitute a claim for compensation.

. . . .

The section presently provides in relevant part:

39-71-604. Application for compensation -- disclosure and communication without prior notice of health care information. (1) 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. It is the duty of the worker's attending physician to lend all necessary assistance in making application for compensation and proof of other matters that may be required by the rules of the department without charge to the worker. The filing of forms or other documentation by the attending physician does not constitute a claim for compensation.

(2) A signed claim for workers' compensation or occupational disease benefits authorizes disclosure to the workers' compensation insurer, as defined in 39-71-116, or to the agent of a workers' compensation insurer by the health care provider. The disclosure authorized by this subsection authorizes the physician or other health care provider to disclose or release only information relevant to the claimant's condition. Health care information relevant to the claimant's condition may include past history of the complaints of or the treatment of a condition that is similar to that presented in the claim, conditions for which benefits are subsequently claimed, other conditions related to the same body part, or conditions that may affect recovery. A release of information related to workers' compensation must be consistent with the provisions of this subsection. Authorization under this section is effective only as long as the claimant is claiming benefits. This subsection may not be construed to restrict the scope of discovery or disclosure of health care information, as allowed under the Montana Rules of Civil Procedure, by the workers' compensation court or as otherwise provided by law.(1)

(3) A signed claim for workers' compensation or occupational disease benefits or a signed release authorizes a workers' compensation insurer, as defined in 39-71-116, or the agent of the workers' compensation insurer to communicate with a physician or other health care provider about relevant health care information, as authorized in subsection (2), by telephone, letter, electronic communication, in person, or by other means, about a claim and to receive from the physician or health care provider the information authorized in subsection (2) without prior notice to the injured employee, to the employee's authorized representative or agent, or in the case of death, to the employee's personal representative or any person with a right or claim to compensation for the injury or death.

6 Rule 24.5.317 of the rules of this Court requires the claimant to disclose medical information relevant to his claim. The rule provides in relevant part:

RULE 24.5.317 MEDICAL RECORDS (1) "Medical records" for purposes of this rule includes all medical notes, reports, test results, correspondence and other written records or materials regularly maintained by any medical provider as a part of the provider's records or file. The term shall also include all reports, correspondence and other documents authored by any medical provider.

(2) Within the time set by the scheduling or other order of the court, the parties shall exchange all medical records in their possession relating to the claimant's work-related medical conditions, other than records of professional consultants who have not examined the claimant and will not be witnesses at trial and whose records the party does not intend to offer into evidence. Failure to exchange any medical record by the exchange deadline shall preclude its use at trial except by stipulation of the parties or order of the court for good cause.

7 Accordingly, the insurer is entitled to discovery of medical information relevant to his claim. The parameters of discovery are set out in Bowen:

[T]he Workers' Compensation Court should authorize such discovery as is relevant to the subject involved in the pending action. It should not be a ground for an 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, but the information obtained must be reasonably necessary to determine compensability.

229 Mont. at 95, 745 P.2d at 337.

8 Liberty has identified the six claims filed by claimant since 1998. The claims are as follows:

5-22-98
Back strain
3-22-99
Chronic tendinitis of left elbow
4-1-99
Allergic reaction/sensitivity to sawdust
11-8-99
Lower back strain
11-23-99
Bruised right thigh, neck/shoulder contusion
6-1-00
Carpal tunnel, right arm

(December 8, 2003 letter of Ms. Carrie L. Garber, attorney for Liberty, to Susan Bulman, Court Reporter, copy in Court file, emphasis added.) As can be seen from the above descriptions, two of the claims are specifically for back injuries. Those two claims (5-22-98 and 11-8-99) are plainly relevant to the State Fund's continued liability for the claimant's 1996 claim. If he suffered one or more material aggravations to the same body part injured in 1996, the State Fund is relieved altogether of liability for continued treatment of his low back. Belton v. Carlson Transport, 202 Mont. 384, 658 P.2d 405 (1983).

9 The November 23, 1999 claim is also relevant. Though the injuries are described as "bruised right thigh, neck/shoulder contusion," the described injuries followed a fall in which the claimant hit "various parts of his body, especially his right leg, right shoulder, and head." Thompson v. Norwest Liberty Ins. Corp., 2002 MTWCC 34, 8. A fall of that sort could involve injury to the back though not reported initially. Since the medical records for that case may lead to "discovery of admissible evidence," the file for that claim is also discoverable.

10 The descriptions of the injuries for the other three claims do not indicate that the medical information in those files may lead to discoverable evidence. The claimant's objections to the production of those files are therefore sustained but without prejudice to the State Fund renewing its request for the files if it has additional information indicating their possible relevancy. The State Fund is may also request for an in camera review of the files to determine relevancy.

11 With respect to the files which are discoverable, the claimant, of course, has a choice: He does not have to pursue his petition. In that light, if he does not agree to disclosure of the three files within seven (7) calendar days of this Order, I will vacate the trial date and stay all further proceedings until such time as he does agree to disclosure of the files. That will provide him an opportunity for appeal if he so wishes. I suggest he read Bowen for further guidance as to his right to appeal. In the event he agrees to disclosure, the three files will be released to the State Fund.

ORDER

12 The Liberty claim files relating to the May 22, 1999, November 8, 1999, and November 23, 1999 claims filed by the claimant are discoverable. Claimant shall notify the Court within seven (7) calendar days of this Order whether he agrees to the disclosure of the files to the Montana State Fund. If he does not, then the trial date shall be vacated and this matter shall be stayed until such time as he authorizes the disclosure or until otherwise ordered by the Montana Supreme Court.

13 This Order is certified as final for purposes of appeal.

DATED in Helena, Montana, this 25th day of February, 2004.

(SEAL)

\s\ Mike McCarter
JUDGE

c: Mr. Lennie J. Thompson
Mr. Thomas E. Martello
Submitted: January 12, 2004
Attachment: Motion to Deny the State Fund Access to Medical Findings and Records

1. Subsection 2003 Amendment: Chapter 464 inserted (2) providing for disclosure and communication of health care information; inserted (3) providing for disclosure without prior notice to injured employee; and made minor changes in style. Amendment effective April 21, 2003.

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