Occupational Disease: Medical Panels

MONTANA SUPREME COURT DECISIONS

Kessel v. Liberty Northwest Ins. Corp. [11/27/07] 2007 MT 305 Section 39-72-602, MCA, does not impose a requirement that a claimant submit to the statutorily-required medical examination within a specific amount of time.
 
MONTANA WORKERS' COMPENSATION COURT DECISIONS

Wommack v. National Farmers Union Property & Casualty Co., et al. [12/26/14] 2014 MTWCC 22 The plain language of § 39-72-602, MCA, provides that the OD evaluation must be completed before a petition for hearing is filed with the Court.  Therefore, the Court will dismiss any case filed before completion of the OD evaluation due to the “jurisdictional defect.” 

LaFournaise v. State Fund [8/14/01] 2001 MTWCC 42 Department of Labor cannot arbitrarily ignore or disregard medical opinion of one of its medical panel members but must consider the opinion in reaching a final determination as to whether a claimant suffers from an occupational disease.
State Compensation Insurance Fund. V. Willard E.Vannett [12/2/99] 1999 MTWCC 77 Where particular physician's conflict of interest had poisoned the handling of the entire occupational disease medical review process, Court declined to reconsider ruling affirming hearing officer's decision that claimant suffered from an occupational disease.
State Compensation Insurance Fund v. Willard E. Vannett [10/29/99] 1999 MTWCC 66 On appeal from decision of DOL, WCC refused to consider evidence from physician who was hired by State Fund to provide advice during evaluation of whether to challenge one physician's opinion that claimant suffered from OD, then accepted appointment to OD panel on same case.
Bowers v. State Fund [9/2/98] 1998 MTWCC 64 The presumption of correctness afforded medical panel reports under section 39-72-610(1), MCA (1993) of the ODA is unconstitutional as a violation of due process of law and an unlawful delegation of executive power.
Boldosser v. State Fund [6/10/96] 1996 MTWCC 42 In deciding occupational disease case, DOL hearing officer relied on presumption of correctness of medical panel report, but record revealed that panel physician likely did not properly apply ODA where reference was made to causation of condition by "injury" on a particular date. Decision reversed by WCA and remanded for designation of new panel and for a new hearing.
Loss v. Lumbermen's Mutual Casualty Co. [3/15/96] 1996 MTWCC 24 Insurer did not raise until filing proposed findings and conclusions of law the argument that no award could be made under section 39-72-405, MCA (1991), because no medical panel had determined it was inadvisable for claimant to continue in the same employment. Where the rules of the WCC require both parties to set out their contentions in pleadings and the pretrial order, the Court would not allow the insurer to raise this argument at trial. While the requirements concerning the medical panel has procedural and evidentiary significance, it is not jurisdictional and may be waived.
Kastella v. Plum Creek Timber Company [06/30/95] 1995 MTWCC 54 Where the medical opinion on which the hearing officer relied attributed 90% of the claimant’s back condition to occupational factors, the hearing examiner erred by assigning respondent liability only for that portion of occupational exposure attributed to employment with respondent. While section 39-71-706(1), MCA (1987) allows apportionment between occupational and non-occupational factors, the statutes do not provide for apportionment between employers. Indeed, section 39-72-303(1), MCA (1987) liability for occupational exposure rests with “the employer in whose employment the employee was last injuriously exposed to the hazard of such disease.” As the last employer, respondent is responsible for 90% of the claimant’s occupational disease. Note: in Schmill v. Liberty Northwest, 2003 MT 80, the Montana Supreme Court held the apportionment provisions of the Occupational Disease Act unconstitutional.
Kastella v. Plum Creek Timber Company [06/30/95] 1995 MTWCC 54 Where medical panel provisions of the Occupational Disease Act clearly contemplate evaluation by an impartial medical panel, ex parte communication from respondent’s counsel received by the physician without time for claimant to add his spin on the evidence may prejudice claimant. The Department of Labor and Industry is obligated to take steps to regulate such communications.