Attorney Fees: Reasonableness of Insurer

MONTANA SUPREME COURT DECISIONS
Tinker v. Montana State Fund [06/24/09] 2009 MT 218 The WCC’s finding with respect to the reasonableness of the insurer’s actions in denying a claim is an issue of fact, subject to the substantial credible evidence standard of review. Where the claimant failed to demonstrate that the WCC’s findings on the issue of the insurer’s actions in denying his claim were not supported by substantial credible evidence, the WCC’s determination that no attorney fee was warranted is upheld.
 
WORKERS' COMPENSATION COURT DECISIONS

Cornelius v. Lumbermen's Underwriting Alliance [08/07/12] 2012 MTWCC 29 While Respondent argued that it was not unreasonable for it to refuse to pay Petitioner’s benefits under § 39-71-407(5), MCA, Respondent cannot escape its duty to pay these benefits and seek indemnification from the other insurer by merely suggesting the possibility of raising an argument that Petitioner’s condition is not work-related.  The Court concluded that Respondent failed to escape its duty to pay benefits under the statute precisely because it raised no arguments to support its suggestion that Petitioner’s condition might be unrelated to work.

Skiff v. Montana State Fund [03/06/09] 2009 MTWCC 8 While the claimant argues that the insurer should have paid domiciliary care benefits and did not “need” his treating physician to fill out a specific form, § 39-71-1107(1)(c), MCA, expressly requires a treating physician to prescribe domiciliary care and fill out the department form. The evidence demonstrates that the insurer made repeated attempts to get the treating physician to fill out the required form. The insurer was not obligated to pay domiciliary care benefits until receiving the treating physician’s response as required by statute, and therefore its delay in paying domiciliary care benefits until it received a response from the treating physician was not unreasonable.
Kilgore v. Transportation Ins. Co. [12/04/08] 2008 MTWCC 51 Where a nurse practitioner noted that Petitioner had a long history of asthma and asbestosis, and a progress note from Partnership Health stated that Petitioner planned on obtaining documentation on possible asbestosis, Respondent reasonably relied upon the Workers’ Compensation Court’s ruling in Fleming v. International Paper Co., 2005 MTWCC 35 (reversed in Fleming, 2008 MT 327), in arguing that Petitioner’s claim was untimely filed pursuant to § 39-72-403, MCA (2001).
Driggers v. Liberty Northwest Ins. Co. [12/31/07] 2007 MTWCC 60 Where the Court failed to appreciate any notable distinctions between the present case involving an employee driving an employer furnished vehicle to work and the cases of McMillen, Ellison, and Gordon, which establish that an employee is usually entitled to compensation when injured during travel to or from his employment where he receives a specific allowance to get to and from his job, to the extent there is any distinction between the present case and the well-established case law, it may be only that the incident in the present case is even more squarely within the scope of the exception to the going and coming rule. Therefore, the Court finds Respondents denial of Petitioner’s claim unreasonable and he is entitled to attorney fees, costs, and a penalty.
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.
Porter v. Liberty [10/19/07] 2007 MTWCC 42 Respondent terminated Petitioner’s benefits without notice and while relying on the opinion of a treating physician whom Respondent knew had not treated Petitioner in over a year. Respondent’s claims adjuster further knew that Petitioner had sought authorization to change treating physicians and a previous claims adjuster on the case had indicated that she intended to grant the change. Respondent’s claims adjuster refused to authorize treatment with a specialist to whom Petitioner’s treating physician refused to refer him for the reason that the treating physician did not want to provide a referral. Respondent’s claims adjuster received medical bills for Petitioner which he did not pay without informing Petitioner that the bills were not being paid or why. The claims adjuster further undertook no investigation in spite of knowing that Petitioner was dissatisfied with his treating physician, that his treating physician refused to provide him a referral to a specialist, and that a previous claims adjuster had already determined that a change in treating physicians was warranted. The insurer’s actions were unreasonable and Petitioner is entitled to his attorney fees.
Mack v. Transportation Ins. Co. [05/22/07] 2007 MTWCC 16 Where the difference between two physicians’ impairment ratings was substantial and the Court found both physicians to be credible witnesses, Respondent’s conduct in paying the lower impairment rating was not unreasonable.
Rice v. Liberty Northwest Insurance Corp. [11/04/04] 2004 MTWCC 73 The Workers' Compensation Court has indicated in past decisions that an insurer is entitled to rely on the opinion of an independent medical examiner. While the statement is generally true, the prior decisions should not be read as indicating that an insurer acts reasonably in every case in which a denial of liability is based on an IME opinion. The insurer has a duty to consider all facts and circumstances in determining liability. Other facts and circumstances may indicate that it cannot reasonably rely on an IME opinion.

Nielson v. State Fund [2/20/04] 2004 MTWCC 12 Where arguments of insurer in opposition to claimant's request for impairment award of fifty percent were not unreasonable, claimant is not entitled to attorney fees. § 39-71-612, MCA (1993). However, if the 42% has not been paid, claimant is entitled to a penalty on that portion.

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.
Beckers v. State Compensation Ins. Fund [02/08/95] 1995 MTWCC 11 Where medical evidence linked claimant’s ongoing need for treatment for his neck condition to industrial injuries, insurer’s reference to subsequent temporary aggravations of claimant’s condition did not sever its liability. Indeed, insurer’s denial of liability in absence of medical opinion that later incidents constituted permanent aggravation was unreasonable, justifying imposition of penalty and attorneys fees.