Constitutional Law: Privacy


Malcomson v. Liberty Northwest, 2014 MT 242 The Court held that the State failed to appreciate that the constitutional right of informational privacy encompasses a fundamental right to control circulation of personal information.  A worker’s consent to release relevant medical information does not mean that the worker loses all privacy interests in how that information is circulated or disseminated.  The right to control circulation of private information would be lost if the worker does not know what healthcare information is being circulated or to whom.

Malcomson v. Liberty Northwest, 2014 MT 242 Where the Montana Supreme Court had already affirmatively applied the Katz test to a claim of privacy in one’s medical information and found the expectation of privacy to be of constitutional significance, the Court found that the fact that the WCC did not perform a Katz test to determine the claimant’s privacy interest in her medical information to be of no moment.

Malcomson v. Liberty Northwest, 2014 MT 242 Where the claimant did not dispute that an insurer is entitled to access to medical information relevant to her claim, but objected only to the provision of § 39-71-604(3), MCA, which permitted an insurer’s agent  to communicate directly with her healthcare providers without prior notice to her or the opportunity to participate in the discussion, the Court rejected the insurer’s position that the claimant had no right of privacy in her medical information because she was on notice that § 39-71-604(3), MCA, abrogated that right.


New Hampshire Ins. Co. v. Matejovsky [08/07/15] 2015 MTWCC 15 Since IME’s are the most invasive type of discovery and implicate a person’s constitutional right to privacy, an insurer may not coerce a claimant to attend an IME by making an ultimatum to attend or lose benefits when there is a legitimate dispute over the conditions of the IME.

Malcomson v. Liberty Northwest [08/16/13] 2013 MTWCC 21 By requiring the showing of a compelling state interest, the privacy clause invokes a strict scrutiny review and therefore Petitioner’s privacy clause challenge shall be reviewed under strict scrutiny.

Thompson v. State of Montana and Liberty Northwest Ins. Corp. and Montana State Fund [10/18/05] 2005 MTWCC 53 Mont. Const., Art. II, § 10, prohibits insurers or their representatives from engaging in ex parte communications with a claimant’s treating health care provider under the auspices of either section 39-71-604(3), MCA (2003), or section 50-16-527(5), MCA (2003).
Flynn and Miller v. Montana State Fund and Liberty Northwest Ins. Corp. [11/05/04] 2004 MTWCC 75 The right of privacy extends only to information as to which an individual has a reasonable expectation of privacy as measured by societal expectations. Pengra v. State, 2000 MT 291, 302 Mont. 276, 14 P.3d 499; Jefferson County v. Montana Standard, 2003 MT 304, 318 Mont. 173, 79 P.3d 805. Claimants in workers' compensation cases do not have a reasonable expectation of privacy with respect to their identities and information pertaining to their entitlement to benefits, at least with respect to attorneys who have established their entitlement to further benefits under the common fund doctrine and where the attorneys are prohibited from disseminating information regarding their identities and claims to others.

(VanHorn) Killion v. State Fund [4/22/99] 1999 MTWCC 30 Section 39-71-721(5), MCA, which provides that workers' compensation benefits to a surviving spouse terminate upon remarriage, does not violate constitutional protections of privacy. While claimant argues the insurer's inquiries regarding her marital status invaded her privacy, the record does not indicate that claimant in fact sought to keep her marital status private in any other context. Moreover, society does not recognize a reasonable expectation of privacy in one's marital status.