Attorney Fees: Cases Awarded

MONTANA SUPREME COURT DECISIONS
Flynn v. State Fund [5/18/01] 2002 MT 279 Pursuant to common fund doctrine, State Compensation Insurance Fund required to bear a proportionate share of attorney fees incurred by claimant to recover social security disability benefits.
S.L.H. v. State Fund [12/28/00] 2000 MT 362 Under section 39-71-612, MCA (1991), costs and attorney fees may be assessed against an insurer by the workers' compensation judge when: 1) there is a payment or written offer of payment; 2) there is a controversy relating to the amount of compensation due; 3) the claim is brought before the court for adjudication; and 4) the judge's award is greater than that offered by the insurer. When the conditions for an award of attorneys fees pursuant to the section are satisfied, the award of attorney fees and costs to the claimant is not discretionary.
Madill v. State Compensation Insurance Fund, 280 Mont. 450, 930 P.2d 665 (1996) Under 1979 version of section 39-71-612, MCA, attorney's fee award was proper even though case settled without reaching WCC.
 
WORKERS' COMPENSATION COURT DECISIONS
Re: John David Miller - The St. Paul Travelers Companies Inc. v. Liberty Northwest Ins. Co. [10/26/07] 2007 MTWCC 44 Where Respondent objected to or provided incomplete responses to Petitioner’s requests for production and interrogatory regarding a complete claims file, including, but not limited to all claims correspondence, claims adjusting notes, and communications with and between Respondent’s medical director, the Court found Respondent’s assertion that the requests were irrelevant and not calculated to lead to the discovery of admissible evidence to be unreasonable and awarded attorney fees and costs.

Montana Schools Group Workers' Compensation Risk Retention Program v. Department of Labor and Industry/Employment Relations Division [6/9/98] 1998 MTWCC 48 Although attorneys fees are not awarded to Montana Schools Group Risk Retention Program based on earlier actions to contest department's assessment of costs to it, attorneys fees are awarded on this enforcement proceeding because the position taken by the Department of Labor resulted in repeated proceedings, making this an "extreme case" in which justice and equity require an award of fees.

McGillis v. State Fund [11/2/98] 1998 MTWCC 79 Attorney fees and penalty were awarded only with respect to the 10% wage loss (PPD benefits) which the insurer conceded at trial and should have conceded earlier based on the evidence.
Ranger Ins. Co. v. Bates [3/16/98] 1998 MTWCC 24 Under Madill v. State Compensation Ins. Fund, 280 Mont. 450, 930 P.2d 665 (1997) and section 39-71-612, MCA (1981), attorney fees were properly awarded to claimant with respect to all PTD benefits payable after the date on which she filed her petition for those benefits, even though hearing was not necessary. As in Madill, claimant demanded PTD benefits, her demand was refused, and the insurer ultimately conceded liability for those benefits. However, attorney fees are not properly awarded with respect to benefits which the insurer attempted to reduce through petition to the Court. Those benefits had already been paid, thus did not meet statutory criteria for allowing an award of attorneys fees.
Wall v. National Union Fire Ins. Co. [2/24/98] 1998 MTWCC 11 Penalty and attorneys fees are warranted based on the insurer's unreasonable denial of the claim, reflected in its failure to ascertain the IME physician's qualifications for the condition at issue, continued reliance on the IME physician's opinions despite information suggesting the treating physician was more qualified, denial of an OD claim in its entirety despite the IME physician's opinion 50% of the condition was occupational, and disregard for some facts and for the opinions of the nurse manager and treating physician.
Ardesson v. Legion Ins. [1/15/98] 1998 MTWCC 2 Attorneys fees awarded to claimant litigating inclusion of actual value of meals in wages for purposes of TTD benefit rate. While insurer had conceded liability for $3.00 per meal, a concession of liability is not an "offer" within section 39-71-612 cutting off liability for attorney's fees where the insurer did not pay the amount conceded and the concession was not implemented within 30 days as contemplated by section 39-71-612(2), MCA (1995). Insurer's delay and failure to pay conceded liability were unreasonable.
Martinez v. State Fund [3/5/97] 1997 MTWCC 9 Insurer is liable for penalty on all accrued, unpaid benefits based on unreasonable delay. Where insurer has conceded it delayed unreasonably after a particular point, the delay impacted all benefits accrued to that date, not merely benefits accruing after that date. Indeed, the delay is more unreasonable as to earlier accrued benefits as they were past due for a longer period. Attorneys fees awarded as well.
(Evans) Brian v. State Fund [11/22/96] 1996 MTWCC 73 Attorneys fees awarded where insurer unreasonably refused to pay for back surgery although overwhelming evidence indicated claimant's accident caused increased, totally disabling back pain. Reliance on fact that pre- and post-accident MRIs were the same, and fact that surgery had been recommended prior to the accident, was not reasonable where claimant and physicians made clear her pain increased and total disability ensured, where she had previously been working.
McClanahan v. State Fund [7/5/96] 1996 MTWCC 50 Attorneys fees awarded where Insurer's conduct was unreasonable for failure to investigate. Insurer took employer's story that claimant did not injure his back at face-value, failing to interview witnesses, ignoring consistent medical records, and not facing conflicts within employer's version of events.
Ostwald v. Plum Creek Manufacturing [12/19/95] 1995 MTWCC 107 Attorneys fees awarded where adjusting firm acted unreasonably in denying incident was injury where employee felt pop in lower back accompanied by sharp burning pain and loss of feeling in leg; the incident met the definition of injury and was an “unusual strain” in the classical sense.