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1 WORKERS' COMPENSATION COURT
4 JEREMY RUHD,
Cause No. 2002-0500
6 LIBERTY NORTHWEST INSURANCE
10 The hearing in the above-entitled matter came on
Thursday, December 18, 2003, at 10:10 a.m. in the Workers'
11 Compensation Court, Helena, Montana. The Honorable
Mike McCarter, Judge of the Workers' Compensation Court,
13 Petitioner was represented by Mr. Geoffrey C.
Angel. Respondent was represented by Mr. Larry W. Jones.
14 Also present at the Court's request to provide correlated
information from a similar case presently going through the
15 Court were: Mr. Stephen D. Roberts, Mr. Lon J. Dale, and
Mr. Greg E. Overturf.
The court reporter in this mater was
17 Laurine Brinkman, a Registered Professional Reporter (RPR)
and Notary Public for the State of Montana.
23 Lesofski & Walstad Court Reporting
21 North Last Chance Gulch, Suite 201
24 Helena, MT 59601
1 WHEREUPON, the following proceedings were held and
2 statements given.
3 . . . . . . . .
5 THE COURT: This is a conference in Jeremy Ruhd
6 versus Liberty Northwest. I called this conference
7 basically to talk about some stuff and I guess it was
8 precipitated by Geoff's request for discovery.
9 And did I quash something for the time being?
10 MR. ANGEL: No, but informally I was asked to
11 consider it quashed, and so we did.
12 THE COURT: Okay, yeah, I think we can achieve the
13 same result and get the same information by a cooperative
14 effort by formal discovery, and sometimes that cooperative
15 effort involves my twisting arms a little bit, but for the
16 most part, I think it gets done. And one of the things I
17 wanted to do is find out what we needed and how to get it,
19 MR. ANGEL: Sure.
20 THE COURT: I guess I sent out a letter or a memo,
21 Clara did, I don't think you got it. Who's Roseville at
22 AOL --
23 MR. ANGEL: That's Lori, my secretary.
24 THE COURT: Okay. So you got this memo and Larry
25 got this memo and there's a memo here. I'll let you guys
1 take a glance at it and I'll have to decipher it because it
2 probably needs some deciphering because it's sort of my
3 thought process and it's fragmented.
4 MR. ROBERTS: I'm not sure I know what any of
5 those questions mean.
6 MR. OVERTURF: It'S interesting, seems relevant.
7 THE COURT: See how I write notes to everybody and
8 then they get translated?
9 One of my concerns in administering this thing was
10 the fact that there's an appeal, but it just seems to me --
11 and the question is, do I even have jurisdiction, sort of
12 consent jurisdiction, everybody agrees to go along, do I
13 even have jurisdiction to continue? And here's my thought
14 on that.
15 My thought is the appeal is by the Fisch, Frost, &
16 Rausch attorneys and that's the only issue that's been
17 appealed at this point. The rest of the case is basically
18 on remand for further proceedings, and I'm not sure that
19 that's appeal effective, and if it is, I wonder if we
20 couldn't just formally bifurcate this part of the case from
21 the appeal part of the case.
22 MR. ANGEL: If I can address that. You
23 specifically certified in my response to the Supreme Court,
24 you certified the issue of applying the common fund and
25 essentially allowing common fund fees, but not the
1 underlying administration of the Claimant, but I think it's
2 a distinct issue that wasn't bifurcated.
3 THE COURT: I think so too. I just worry about
4 some of that stuff.
5 MR. ANGEL: The reality is, those people need to
6 get paid, the sooner the better, and the amount of the fees
7 is something that can be held out if there is any remaining
8 award to go to the Claimant, can be sent later, but the
9 majority of it goes to the Claimant and it's just a matter
10 of --
11 THE COURT: Yeah, let me see what my original
12 order was. I think you're right. I think I just certified
13 the --
14 MR. ANGEL: Very clear in what you certified too.
15 THE COURT: Right, okay, okay, all right, well,
16 that probably solved the problem. I mean, the concern
17 doesn't go 100 percent away, concerns never do, but it just
18 seems to me that that was the only thing that went up to
19 the Supreme Court at this point in time. All right, we'll
20 leave that be.
21 Larry's still got two issues you want to brief.
22 One is the common-fund issue and the other is the
23 retroactivity issue.
24 And you indicated, Larry, that you thought it is
25 primarily based on legal principles. The only thing that I
1 saw there was you had some numbers that are involved and
2 that involves the total number of Permanent Total
3 Disability claims and we don't have a handle on Temporary
4 Total that might be misclassified. But it just seems to me
5 that that would help your case, rather than Geoff's case,
6 as far as identifying further numbers. I mean, the numbers
7 game is that the more numbers, then the more difficult the
8 whole thing becomes, and that may get you into the Chevron
9 considerations or maybe the common fund considerations.
10 My thought is, there's probably enough there to go
11 ahead and brief it. You probably know what my inclination
12 is already. My inclination is that the common fund applies
13 and retroactivity applies. Well, certainly if they don't
14 go by Chevron, retroactivity is definitely going to apply
15 profits. There's another recent Supreme Court case that
16 they didn't apply retroactively and this is a criminal
18 MR. JONES: It's a --
19 THE COURT: It's not a criminal case, it's a
20 statute of limitations case, which is a procedural bar.
21 It's typically been held a procedural bar and so I have to
22 read this and obviously we're going to have to brief the
23 effect that it could change things. I haven't read it but
24 I looked at that and how that squares with what they said
25 before, I don't know.
1 MR. ANGEL: When they talk about applying cases
2 retroactively, they've always made an exception on
3 procedural rules or procedural considerations, and they've
4 said generally that those never will because it's not fair
5 to hold them against somebody -- a procedural rule that
6 they didn't know about at the time.
7 THE COURT: Retroactively?
8 MR. ANGEL: I think that's an exception to the
9 whole retroactively issue. They tend to apply procedure
10 rules only retrospectively. I think there's a whole body
11 of law on that.
12 THE COURT: I have to deal with that, obviously.
13 Larry wants to argue it, he may want to argue to the
14 contrary. I don't have enough knowledge at this point to
15 sort it out one way or the other, but my feeling is still
16 that this will probably get applied retroactively, but I
17 want to look at those arguments. I mean, I say things like
18 that and then I go look at the stuff and then I reverse
19 myself before the end, but I suspect that won't be the
20 case, but it's happened.
21 But I don't think, Geoff, that anything further
22 discovery-wise is going to benefit you. I'm just saying it
23 would probably benefit Larry, you now identifying other
24 plaintiffs would benefit Larry because the greater the
25 numbers, the more he can argue.
1 MR. ANGEL: We know the number is -- I mean,
2 there's actually an exact number of the maximum claims and
3 it's like 4,600 and I, at one point wrote Larry and said
4 other than the 20 that they've acknowledged, I'd be happy
5 to send someone down and go through the files there in your
6 office because I think -- well, I think Larry will
7 acknowledge and I know that a lot of those TTD claimants
8 are Perm Total just by the way they adjust the claims. I
9 think that's not an uncommon occurrence, if it's a matter
10 of just going through those files and seeing how long each
11 person has been out.
12 THE COURT: Yeah, but I think before we even get
13 to that, I think we can probably go ahead and brief the
14 retroactivity --
15 MR. ANGEL: Sure, I do.
16 THE COURT: I think you can just give me the total
17 number of Temporary Total Disability claims, just the
18 total -- Permanent Total Disability claims. And the fact
19 that some of the Temporary Total may be Permanent Total and
20 we don't have a handle on that number and I think that's
21 sufficient to make a decision.
22 MR. ROBERTS: Judge, what's the specific
23 retroactivity question?
24 THE COURT: Whether or not Fisch, Frost & Rausch
25 will be applied retroactively. We didn't meet that in
1 Fisch, Frost & Rausch because it was settled. Larry wants
2 to pursue the issue and it's being pursued in some of the
3 other cases. Theoretically, we could end up with different
4 results on some of these, also the common fund, whether or
5 not there's a common fund. On a continuum, the easiest
6 cases are the ones where there's a clear-cut benefit
7 payables, it's easy to identify the people. The hard cases
8 will be the Wild and Matthews case. I think they have a
9 heavier -- a harder hill to climb regarding, for sure, the
10 common-fund issue.
11 MR. ROBERTS: Is it even a retroactivity question
12 with Fisch, Frost & Rausch? Because the Supreme Court in
13 that decision said that this is what the Work Comp law has
14 always meant, regardless of how the comp insurers were
15 administering that, this is what the law meant. So I don't
16 think technically it's -- when you go back, it's really
17 retroactively and says you've been applying it wrong all
18 these years.
19 THE COURT: Well, Larry thinks it is, so he gets
20 an opportunity to argue it. That's the counter to that
21 and, of course, the problem is that in Fisch, Frost &
22 Rausch they held that there's an entitlement to common
23 funds and holding its entitlement to common funds, that
24 sort of indicates that you've got to have some claimants,
25 and the claimants to which that would apply would be the
1 people that are already out there because they've already
2 said it's not perspective. So we may almost have a
3 res judicata or a law, a decision on it. So that's another
4 hill that Larry's going to have to climb.
5 MR. ANGEL: Thank's for pointing that out. I
6 think you're right about that.
7 I have a question on the common fund. Now as I
8 understood it, Larry's going to raise the issue now, the
9 common fund doctrine shouldn't be applied to the Liberty
11 MR. JONES: It's still on the table.
12 MR. ANGEL: Because I thought that's what you did
13 in your last order and that's what you certified.
14 MR. JONES: Right. I'd have to agree, as I read
15 that last order, if it's not expressed, it's certainly
16 implied there's a common fund, and so I'm not really
17 hitting that one, I'm hitting the --
18 THE COURT: The retroactivity?
19 MR. JONES: Which includes as a component, for
20 example, statute of limitations type of issues and settled
21 cases and trying to get a boundary around what cases are in
22 that common fund, if you find it's retroactive.
23 THE COURT: Yeah, and we can set those parameters,
24 that's not going to be that difficult.
25 MR. ANGEL: We're not going to be briefing the
1 common -- re-briefing that common-fund issue.
2 MR. JONES: Not in this case, no. There is a
3 case, for example, Schmill, where it was not pled but
4 Geoff, obviously, pled everything.
5 THE COURT: So the real issue is going to be the
6 retroactivity and the scope of the common fund, okay. And
7 I think we can go ahead and brief those issues. There
8 might be -- I mean, not be able to determine the scope of
9 the common fund in every case at this point in time because
10 there are differences and there were differences, for
11 example, in this source of settlements in some of the
12 cases, generally settled cases are probably going to be
14 Hi, Rex, by the way, there's newcomer's food. We
15 have food.
16 MR. OVERTURF: I only ate a quarter of that one.
17 MR. ANGEL: Well, so as I understand it, Larry's
18 going to brief on the scope of the common fund, just the
19 affirmative defenses, statutes of limitations, those
20 things, and you'll describe this --
21 MR. JONES: And general retroactivity.
22 MR. ANGEL: Just affirmative.
23 MR. JONES: It's kind of a Pac-Man approach. If
24 you don't get the retroactivity, still there's the scope
25 issues that are left to nibble away at.
1 THE COURT: Right, okay. Let's go ahead and set a
2 briefing schedule on that.
3 MR. JONES: One thing on that, Judge,
4 unfortunately, I didn't think to raise it before today.
5 One of the problems, as you know, is the equity of applying
6 retroactively or prospectively, and we have to rethink how
7 we think about so much of this, and I was wondering if I
8 might have some time to talk to our underwriters on the
9 issue of whether the premium that was paid on these cases,
10 where the claims that predate the decision in this case,
11 whether we collect a premium to cover this risk.
12 The idea would be it would be unfair for us to
13 have to pay out on a risk when we didn't know about and if
14 we couldn't collect the premium to capture that risk.
15 Steve and I talked briefly before it began. It's
16 the opposite side of the stacking argument that we hear so
17 often in the Montana Supreme Court.
18 MR. ANGEL: But there is an impairment rating,
19 you're saying.
20 THE COURT: Stacking may apply retroactively, at
21 least the insurers are thinking it applies retroactively
22 because my premiums just got increased retroactively.
23 MR. JONES: That's the idea that it wouldn't be
24 fair to force someone to pay for a risk they didn't know
25 about because they couldn't roll that into the premium
1 base, based on actuarian information.
2 MR. ROBERTS: I'm sorry, I didn't mean to
4 MR. JONES: Go ahead.
5 MR. ROBERTS: As I discussed with Larry at the
6 beginning, they shouldn't get rewarded because they didn't
7 have enough foresight to foresee this risk that the Supreme
8 Court said was there all along.
9 THE COURT: Because they misinterpreted the law?
10 MR. ROBERTS: Right.
11 THE COURT: Like I did.
12 MR. ROBERTS: Who said that?
13 MR. DALE: To jump in here though, there was some
14 insurers that were doing that, Larry.
15 MR. JONES: They obviously had figured that out
16 and put that into their premium, misapplied the law,
17 according to Judge McCarter. I may object but I would like
18 to have a chance to follow up, perhaps submit an affidavit.
19 MR. ANGEL: My understanding though, if you're
20 talking about the risk that the carrier would have to pay
21 an impairment rating for somebody that was disabled up to
22 100 percent, that's a known risk and always has been.
23 MR. JONES: As I understand the impact of FFR, you
24 get your full Perm Total rate and then you got on top,
25 stacked on top of that, the impairment rating, which
1 heretofore not all companies were doing. And so there may
2 not be question -- maybe it's already in the actuarial base
3 because I'd like a chance to see it. In fact, it was
4 rolled into the premium.
5 THE COURT: Or whether they even considered it.
6 MR. JONES: Right. And that would sort of give
7 time for me to talk to an underwriter.
8 MR. ROBERTS: That would seem to be irrelevant as
9 to whether or not the underwriting department, you know,
10 had enough foresight to roll into the premium something
11 that should have been into the premium, that's more on them
12 than you, you can't penalize a Work Comp injured claimant
13 who is entitled to those benefits by saying that the
14 insurance company didn't have the foresight to include that
15 in the premium.
16 THE COURT: Well, at least where the law hasn't
17 been interpreted by definitive or by a court, that's a
18 completely different situation if it has been, and then
19 they change the rule, I think that's a big deal but even
20 there --
21 MR. JONES: It also goes to the foreshadowing
22 issue, is one of the problems in the Riley.
23 THE COURT: How clear was it? Sort of like the
24 foreshadowing issue is almost like the Section 1983
25 standards, you know, well, it's a little bit different than
1 the Section 1983 standard where you've got to know your
2 conduct is illegal. If it's arguably not illegal and you
3 do it, then you can't be sued under Section 1983, and if
4 it's ultimately determined you violated somebody's
5 constitutional rights.
6 But in any event, I'm probably more inclined to
7 adopt Steve's argument, but notwithstanding that, I think
8 we ought to make a record of it so it's there, so those
9 arguments are there, so that if this goes to the Supreme
10 Court, if Larry wants to appeal it, then they can consider
11 it. So my suggestion would be, why don't you take a week
12 or two, find your underwriters and get an affidavit?
13 Geoff, look at that, because, I mean, if you just
14 disagree with it, if they say something in there that you
15 want to inquire about, then maybe we ought to do a
16 deposition and fully flesh that out. For example, if they
17 say we specifically did not take this into consideration
18 and Geoff has some doubt about it and wants to see the
19 thought process, maybe it's not specifically taken into
20 consideration, it's just a matter -- they never thought
21 about it. That's a little bit different scenario than
22 thinking about it and looking at the statute and deciding
23 that we shouldn't account for this risk. There may be some
24 shades in there.
25 MR. JONES: I think what we'll find is, as I
1 understand the underwriting, it's going forward at
2 100 miles an hour and they're looking in the rearview
3 mirror at your actuary history, so it could not have been
4 captured if you weren't paying it out, and that's the idea.
5 MR. OVERTURF: I don't know if it's helpful in
6 this case but in the State Fund, Geoff -- but in Stavenjord
7 and Schmill, they handle a lot of those factual bases for
8 the foreseeability and the equity argument in the form of a
9 stipulation, which has worked out real well.
10 MR. JONES: I need to get the information to
11 Geoff. Geoff may say I'd like to talk to this gentleman
12 or --
13 THE COURT: Sure, and if you can do it informally
14 and reach an agreement on it, that's the way I prefer to
15 have that done.
16 MR. JONES: I'll get on that Friday.
17 MR. DALE: Larry, weren't you paying at 65 though?
18 That's what I've got a quibble about because if you were, I
19 can't believe that it would be a significant aspect.
20 MR. JONES: It would be much less because --
21 MR. DALE: And if you weren't paying at 65, then
22 shame on you.
23 MR. JONES: That's what I want to explore on this.
24 It may be a non --
25 THE COURT: May be a non-starter.
1 MR. JONES: Right. It did come to mind, I keep
2 thinking about stacking.
3 THE COURT: Why don't you try to get that wrapped
4 up in two weeks?
5 MR. JONES: Yes, Your Honor.
6 THE COURT: I'm just trying to move the cases
7 along and sometimes I have to set some deadlines, even
8 though they may shift a little bit, at least it gets on
9 people's calendars and they work on it. Then if they just
10 blatantly disregard it, then -- but they never do.
11 What's the status of Ruhd in the Supreme Court?
12 Has that been fully briefed?
13 MR. ROBERTS: Yes.
14 THE COURT: Has it been classified?
15 MR. ROBERTS: Unh-unh, no, not yet.
16 You haven't gotten any notice of that, have you,
18 MR. ANGEL: No, they haven't.
19 THE COURT: When was it briefed?
20 MR. ROBERTS: When was the last brief filed?
21 MR. ANGEL: Fully briefed, I think within the last
22 30 days.
23 THE COURT: What's your experience in
24 classification after full briefing? How long does it take
1 MR. ROBERTS: It's variable. I don't know if
2 there's been any regular pattern.
3 MR. ANGEL: I get it sometimes within 60 days
4 before the opinion, eight or ten months out from there, and
5 then they give the opinion fairly quickly.
6 THE COURT: I know they're overwhelmed and I know
7 they're behind and I'm behind now too, so I don't know when
8 we can expect that, that's the problem.
9 All right. And the only thing that that really
10 affects here is the global claim and whether or not Fisch,
11 Frost & Rausch attorneys have the claim to the common fund
12 fees with respect to Liberty.
13 All right. The next question is, we've identified
14 the Permanently Total Disabled people.
15 MR. ANGEL: 20.
16 MR. JONES: No, Your Honor.
17 THE COURT: Okay, Larry is going to give us the
18 exact number.
19 MR. JONES: I sent -- Judge, I sent a letter to
20 Geoff, excuse me, on October 16th, and I had a chart with
21 14, I believe it is, cases that we've identified based on
22 the computer coding. Then I actually walked around and
23 talked to the adjusters and they have their name, also last
24 name, and they confirmed that these were conceded Perm
25 Total cases. There were some earlier numbers that I gave
1 Geoff that were a little higher, I believe, and when I did
2 talk to the adjusters, the ones that are not on this that
3 could have been in the other number, were, in fact, still
4 on Temp Total.
5 THE COURT: But the adjusters believe that they're
6 actually Permanent Total?
7 MR. JONES: They don't know yet, Your Honor. Some
8 of these Temp Total cases can get dragged out quite a bit
9 before there is concession of Permanent Total or the
10 actual --
11 MR. ANGEL: Ten years ago. I say that because
12 I've got one.
13 MR. ROBERTS: How many claimants fall into that
14 category with a Temp Total?
15 MR. JONES: I can get a number. In other words,
16 I've previously on the record given a number of the total
17 claims filed against Liberty since they began writing in
18 1988. I had another printout that showed how many
19 fatalities, how many partial payments, how many were Temp
20 Total, how many were occupational diseases, I think there
21 was 909 occupational diseases, and I can get that
22 information and share it with all of you, if you'd like it.
23 MR. OVERTURF: Larry, how far back did you go?
24 MR. JONES: Well, again, we started writing at
25 Liberty Northwest in 1988. Our Liberty Northwest case, not
1 Liberty Mutual, which has been writing, I believe, since
2 the 1930's.
3 THE COURT: Well, we're only dealing with this
4 statute since what, 1991?
5 MR. OVERTURF: Uh-huh.
6 MR. DALE: '87, if you look --
7 THE COURT: Well, I said it didn't apply back to
9 MR. DALE: '91 under Rausch and, of course, they
10 should probably go back and look at '87, 1987.
11 THE COURT: I ruled on the '87 issue and I ruled,
12 I think, against you. That's on appeal.
13 MR. DALE: That's on appeal, right.
14 THE COURT: Okay, so for sure '91, (question
15 mark), as to back to '87.
16 MR. DALE: Right.
17 THE COURT: Okay. That's why I wanted Greg here
18 and also the rest of you.
19 In Fisch, Frost & Rausch, what did you do with
20 respect to Temporary Total people who may be, in fact,
21 Permanently Totaled or, if anything, or did you just ignore
23 MR. DALE: We relied on Greg's position on that.
24 MR. OVERTURF: And we went and we looked at some
25 of those and after we came up with our initial list, there
1 were some that were added in there that were looked at and
2 it was agreed that they were appropriately classified as
3 Permanent Total.
4 THE COURT: Okay. So you looked at the Temporary
5 Total list and you dwindled it down, but how did you do
6 that? Because, obviously, there's thousands of Temporary
7 Total people. You didn't go through all of the files, I
8 don't think.
9 MR. OVERTURF: Didn't go through all of the files.
10 I think they looked for files that had been on Temp Total
11 for what seemed like a long period of time. Had the
12 adjusters go in and look at them and then -- because I
13 remember when we were putting together those lists, we had
14 Permanent Total meetings, which is when there's a claimant
15 who they're considering whether he should probably be
16 classified as Permanent Total Disability, there's a meeting
17 with the adjusters and their supervisor and medical person,
18 and they go through it and we had a number of those
19 meetings and a number of those people were determined to be
20 Permanent Total Disabled.
21 Generally in those cases where you've got the
22 people who were long term Temp Total, it's usually a rehab
23 issue. They're trying to place them in some kind of work.
24 They have them find something they can do and maybe go back
25 to work and they can't do that job so they're trying
1 something else.
2 THE COURT: What period of time did you use as far
3 as a cutoff or looking at them? They've been on Temporary
4 Total for two years, one year, five years?
5 MR. OVERTURF: I think five years.
6 THE COURT: Five years?
7 MR. ANGEL: My suggestion, this is a suggestion I
8 brought up I think at the first hearing, is that we go
9 maybe even to the Department of Labor statistics for how
10 long somebody remains out of work or, odds are, they never
11 return to work, use that as a cutoff point, and then review
12 those claims. Because I think it would narrow it down,
13 this case with Liberty, 4,600 potential claimants, to
14 probably a manageable number at that point.
15 MR. OVERTURF: I think that raises a lot of real
16 problems though if there's an issue about whether the
17 person is properly Temp Total or Perm Total. No. 1) There
18 may be another attorney involved in that who really has
19 been hired by the Claimant to represent them on that issue.
20 That was not the issue that was raised in Fisch, Frost &
21 Rausch, nor in this case, whether or not that was --
22 strictly whether or not somebody who's been determined Perm
23 Total is entitled to their impairment. This is a separate
24 issue about whether that person -- whether the TTD is Perm
1 THE COURT: Yeah, for sure we're not going to get
2 into litigating each case individually to determine whether
3 they're misclassified. The only thing that I think we want
4 to look for are cases where they're obviously
5 misclassified. It's really not an issue, their status just
6 hasn't been changed and those are the kind of cases we want
7 to look for.
8 MR. ANGEL: I think Greg agrees with me, obviously
9 in practice because you guys did it, and so if the
10 Department of Labor statistics show five years, you
11 wouldn't have a problem with that because that's exactly
12 what you did.
13 MR. OVERTURF: I would not say that the fact that
14 somebody is on Perm Total for five years means they're Perm
16 MR. ANGEL: But you guys looked at those files and
17 then made a determination for who to --
18 MR. OVERTURF: We did review a number of cases.
19 And sometimes this comes up when you're searching for them.
20 They actually have conceded Perm Total and maybe letters
21 have been sent out and so forth, but on the computer
22 system, the switch never got -- those, I concede certainly
23 belong in the pool if there's any dispute about whether
24 they are Perm Partial or Perm Total. I don't think they go
25 in the pool.
1 THE COURT: They won't go in the pool, I can
2 assure you of that, if there's a dispute, they don't
3 properly belong here.
4 MR. ROBERTS: Excuse me, Judge, what criteria did
5 you use when you looked at -- let's say you saw somebody
6 has been on Temporary Total for five years, what criteria
7 did you use to come to the determination whether they were
8 Temporary Total or Permanent Total?
9 MR. OVERTURF: You look at employability. Is
10 there still a reasonable prospect that this person is going
11 to return to work and are efforts being made in that
13 MR. ROBERTS: So if someone has been Temp Total
14 for five years and there was no rehab going, was that a
15 situation where you say okay, this should be a Perm Total?
16 MR. OVERTURF: I would say most likely, yes.
17 MR. ROBERTS: But was that the standard that you
18 guys used? I'm just trying to figure out what standard you
19 used. Let's say, just say, okay, here's a claimant, five
20 years Temp Total, we need to determine if there's a
21 reasonable prospect of employability. What standards, in
22 fact, did the State Fund use when you did that review?
23 MR. OVERTURF: I can't tell you that.
24 MR. ROBERTS: Who did the review?
25 MR. OVERTURF: The reviews would be done by the
1 adjuster and generally some medical case manager people.
2 They look from the medical standpoint -- they would have
3 looked at whatever rehab was going on, extensively looking
4 at the file.
5 MR. DALE: This is an issue, Your Honor,
6 because -- and I've got that Oliver case still, so I don't
7 do great volumes of Work Comp, but there's obviously an
8 incentive for an insurer to leave a person on Temporary
9 Total, even though they may qualify for Permanent Total,
10 the payment, of course, is the same, so the worker isn't
11 missing out on that, but they're missing out on the COLA
12 benefit after it's transferred.
13 So there's got to be some process to look at that
14 because I think there's probably -- there could be a lot of
15 especially unrepresented people, but even like I think that
16 Oliver has been on Temporary Total forever, and I think
17 he's pretty much conceded to be a Permanent Total but he's
18 close to retirement.
19 So, I mean, there is definitely an incentive for
20 an insurer to leave a person in that category rather than
21 reclassify because of the COLA benefits. So I think it
22 deserves some scrutiny.
23 THE COURT: Yeah, I know, but the question is, how
24 much scrutiny am I going to give it? The problem is, is
25 each of those cases may vary factually and that is not a
1 case -- those cases are not appropriate for common fund.
2 And it may be if you find a pattern in practice, you may
3 have a separate issue there and, indeed, that might give
4 rise to a penalty, which is probably the protection against
5 something that's deliberate and focused like that.
6 But, I mean, I think what we have to do is we have
7 to draw some reasonable criteria as far as identifying ones
8 that are likely to fall within this conceded Permanent
9 Total Disability category that just haven't been changed on
10 the computer, identify those, because those are
11 appropriate, I think.
12 MR. ANGEL: Can I make a comment? The numbers
13 that we've been given by Liberty I think demonstrate a
14 statistical anomaly that can't possibly be true. For
15 15 years they've got 14 Perm Total people, and I,
16 personally, in my own claims that I'm handling, know that
17 they have a practice of not categorizing people.
18 I think a way to address it would be to adopt some
19 criteria like the five years, but then if the Claimant's
20 attorneys would look at those files, I think what would
21 happen, rather than the insurer, it would be like a litmus
22 test. The two parties, once they know the claims --
23 looking at the files, could probably agree on 99 percent of
24 the people that are Perm Total because it will be -- just
25 be obvious from the file itself.
1 MR. PALMER: I think it's definition, I don't
2 think it's complex. When you reach Maximum Medical
3 Improvement, you can no longer be Temporarily Totally
4 Disabled. You simply have to determine if they're
5 medically stable. The doctors often have records in there.
6 The treatment is stopped, the insurers have even frequently
7 said we're not going to pay before -- we're not going to be
8 paying anything palliative. And so the definition just
9 strikes a bright light. People that are medically stable,
10 if they're still totally disabled, it's permanent, and you
11 can't call those people Temporary Total Disabled then it
12 doesn't have to fall outside the common funds. It's there
13 or it's not there, and it doesn't matter if they're five
14 years --
15 MR. ANGEL: So if they get an impairment rating,
16 they have a 5 percent disability rating, is that person
17 employable or not? I mean, the insurance company is going
18 to say, of course they are.
19 MR. PALMER: I'm just saying if they're medically
21 THE COURT: Well, I may be working towards rehab
23 MR. PALMER: Then they're totally disabled,
24 they're Permanently Totally Disabled subject to rehab.
25 THE COURT: No, not necessarily, they may have to
1 be paying them Temporary Totally Disability benefits when
2 they should have shifted them to rehab. I mean, I've seen
3 that before, where they've continued for quite a while and
4 actually it's to the Claimant's benefit because if they
5 shift them into that rehab mode, then you start getting
6 deadlines on that stuff. And so I don't think what you're
7 saying is entirely true.
8 But be that as it may, I mean, the problem is, I'm
9 not sure we have anything in place where they identify --
10 automatically identify claimants who some letter comes in
11 for that that says that they're at Maximum Medical
12 Improvement and also you may get contradictory things, you
13 may have something that comes in and says that they're MMI
14 and you may have something that comes in and says they're
15 not MMI or you may have doctors disagreeing, and we see
16 that all time. It's not quite as easy as --
17 MR. PALMER: They can fall in and out.
18 THE COURT: Right, they can fall in and out,
19 exactly. So I'm not sure that's a litmus test that we can
21 Larry, do you know if they keep track in the
22 computer of whether or not MMI finding has been issued?
23 MR. JONES: I'm not aware of any code that could
24 be used to identify that. They keep journal entries, used
25 to be called Bocom, B-O-C-O-M, screens. All they are is
1 the adjuster's notation on a field where they keep the
2 notations of the fact that a document was received. For
3 example, a Dr. X who found MMI with X percent, et cetera.
4 But it's not like, as far as I'm aware, it comes in and all
5 of a sudden F2 is hit or something and it registers,
6 wherever F2 is.
7 We'd have to look through the narratives and
8 literally go through summaries of the report and just
9 scroll them up, here's the date, here's who entered it, and
10 here's the finding.
11 MR. OVERTURF: That's my experience too and that's
12 because all the reasons you're talking about, the MMI
13 doesn't have the significance that that automatically means
14 that that date he has been Perm Total or Partial because
15 you've got all the rehab components to go through, plus
16 very often people do go on MMI. The guy hits MMI, they
17 think he's okay but then he ends up needing surgery six
18 months later, and then you've got another six months going
20 MR. PALMER: I'll grant that, but setting aside
21 who benefits from it, if you go to the definition, you just
22 can't be medically stable and be Temporarily Totally
23 Disabled, and so it starts creating some channel as far as
24 finding people, definition-wise.
25 THE COURT: And that may be appropriate to explore
1 in individual cases but the question is, whether or not
2 it's appropriate to consider in a common fund case where
3 the people should be readily identifiable and the same
4 thing with a class action case. I mean, once you start
5 getting into all these nuances and differences, then if
6 you're in a class-action case, your class falls apart. And
7 in the common funds, the problem is, is if there's any
8 controversy about that, then common fund really doesn't
10 So we've got to have something that's clear and
11 readily identifiable to use here. I mean, I suppose we
12 could use Maximum Medical Improvement to look at files.
13 You certainly could do that to look at files. The problem
14 is, is can we identify the files that way? And I'm not
15 sure, unless these fields are searchable and there's some
16 magic language that's used in that. I'm not sure that
17 would be searchable.
18 MR. ANGEL: I think it makes more sense to do
19 exactly what the State Fund did. The only request I would
20 make is that because of my own knowledge because of how
21 this company works, that we be allowed to look at the
22 files. Manually just look at the -- if it turns out to be
23 1,500 people that have been on TTD for five years or more,
24 whatever period of time.
25 MR. OVERTURF: I really think that's outside the
1 scope of what this case is. You're talking about a
2 thousand separate issues or whether or not the person is
3 Perm Total --
4 MR. ANGEL: Right, but I --
5 MR. OVERTURF: A thousand separate cases. What
6 FFR and what Ruhd were about was about an insurer who
7 conceded somebody is Perm Total, whether or not they were
8 paying their impairment the total time. It was not about
9 whether the insurer had properly classified the person as
10 Perm Total.
11 MR. ANGEL: It's about whether or not someone is
12 entitled to an impairment award when you have a function of
13 whether they're Perm Total. When you have an insurance
14 company that has no incentive and actually a disincentive
15 to recognize people as such, that's the idea of
16 administering it. I can look at 500 files and I bet you
17 that you and I could agree on most of the people that were
18 Perm Total just by glancing at the files and stacking them
19 in two stacks.
20 MR. DALE: I have to agree with Geoff that it is a
21 statistical anomaly that there are only 14, just looking at
22 what we've -- looking at market share and looking at what's
23 happened from the State Fund's analysis and FFR, 14 is a
24 statistical anomaly.
25 THE COURT: 14 out of how many?
1 MR. ANGEL: 14,000 in 14 years.
2 MR. DALE: Which is suspect.
3 THE COURT: Well, yeah, and I think Larry has
4 already acknowledged that it's suspect. I guess the
5 question is, how do we go back and deal with that?
6 MR. JONES: I acknowledge it's possibly suspect.
7 THE COURT: Possibly suspect, I stand corrected.
8 MR. ROBERTS: Judge, my concern is that I think
9 the same as the Court, we've got to have definite criteria.
10 Let's say if the criteria of the Court decides what's
11 reasonable is looking at every TTD that's been TTD for five
12 years or more, we need definitive criteria to apply when
13 examining each case. We can't just say, well, the insurer
14 gets to say without any examination by the attorneys who
15 are looking after the Claimant's interest, the insurer gets
16 to say whether this is a TTD or a PTD case. And if you
17 disagree, well, then that's a contested matter, it falls
18 outside of Rausch.
19 Otherwise, the insured gets to say, well, sorry,
20 we've reached the determination that everybody is TTD so
21 nobody is entitled so I think that's the end of the
22 inquiry. That's not right and it's not fair.
23 MR. OVERTURF: Is it a common fund though? Is it
24 a class?
25 THE COURT: I think it's a quality-control
1 question more than anything else. The question of looking
2 at the files and making sure that they're scrutinized
3 carefully enough to make a legitimate good-faith
4 determination. They don't trust you.
5 MR. ROBERTS: I just agreed completely.
6 But, Greg, you don't know what standards they
7 applied, you don't know exactly who was doing the
8 examination, you don't know if you looked at those files
9 you would agree with the people in the State Fund who said
10 this is TTD instead of PTD, and I'm not questioning their
11 motives. I'm just questioning the criteria they applied,
12 are there objective criteria? Who was doing it? Was the
13 person qualified? What standards did they use?
14 And I think part of our job, Judge, as the
15 common-fund attorneys, part of the way in which we're
16 earning our common-fund fees is to be looking out for these
17 people and to be saying, are they being treated fairly?
18 Are the proper criteria being applied? And it would take
19 an enormous amount of work on our part as common-fund
20 attorneys to be looking at each of these files, but I think
21 that that's something we should do.
22 THE COURT: Well, maybe you don't have to look at
23 each of the files. You may be able to do a sampling too,
24 just from, again, looking at it from a quality control
25 point of view. I think from a realistic point of view, I
1 understand what you're saying but there is also an
2 incentive on their part to look at them in a good-faith
3 manner because if they don't, and it comes back and this is
4 clearly it should have been a Permanent Total and the
5 suggestion is -- the argument is, they don't do it because
6 they didn't want to pay the impairment award and they
7 wanted to save money, then that becomes a penalty case and
8 if it's on a widespread basis, it's a matter of practice
9 and policy, then maybe now you've got another class or
10 something like that.
11 But, I mean, there is an incentive there for them
12 to act in good faith, but I understand what you're saying
13 as far as quality control insofar as that's what it is, it
14 may not be a bad thing, and it may be beneficial, it might
15 even be beneficial to the insurer because then you've got
16 some assurance that you made a good-faith effort and the
17 acquisitions of misclassifying down the road may go away,
18 but at least you've got something to show that you tried to
19 act in good faith, so it may be a benefit to both parties.
20 I don't want to do anything with that today
21 because I think it's premature to do that. We might want
22 to think about it, you may want to talk about it too.
23 MR. ROBERTS: Yeah, maybe it's something we can
24 work out.
25 THE COURT: Yeah, I mean, it's certainly something
1 to talk about. I think the first thing to do is to
2 identify what's in that pool and you've used five years.
3 Five years certainly sounds reasonable to me. I probably
4 wouldn't use a longer period.
5 MR. DALE: Five years is a long time.
6 THE COURT: Yeah, my question would be, use a
7 shorter period. If you go to the Department of Labor
8 statistic, I'm not sure what that tells you.
9 MR. ANGEL: I think if you pick a period of time
10 where people are more than 50 percent likely to not return
11 to work, and add the additional criteria of voc-rehab, if
12 they haven't been in voc-rehab for more than --
13 THE COURT: Except you've got people out there
14 that don't return to work, not because they're disabled but
15 because they lack the incentive to return to work. We've
16 got statistics out there that are showing if you don't
17 return to work in six months, it's unlikely you return to
18 work, and part of that has to do with motivation of the
19 worker, not whether or not they're disabled.
20 MR. ANGEL: I proposed two years before, but it's
21 probably somewhere in the middle.
22 MR. OVERTURF: I'm taking a shot at five years.
23 I'm not sure what the criteria was that the State Fund
24 used. I don't know if they looked for people on two years,
25 three or four or five.
1 THE COURT: Can you get the labor statistic?
2 MR. ANGEL: Sure.
3 THE COURT: Go ahead and get the labor statistic.
4 I'm not going to set the mark today and I think we ought to
5 attempt to try to set it by consensus, something that
6 everybody agrees to that is reasonable that we're likely to
7 pick up those people that's inclusive enough that we'll
8 pick up most of the ones that should be qualified and would
9 be classified if they went back and actually looked at the
10 time file and just changed the computer codes. So I'm
11 going to leave that open.
12 MR. ANGEL: I will pass around the raw data to
13 everybody so they can see --
14 THE COURT: Greg, maybe you can find out what
15 criteria were being used and why don't you communicate that
16 to Larry and to Geoff too, as well as to Lon and to Steve?
17 MR. OVERTURF: I know that the State Fund, they
18 made a concerted effort to go and find people who it was
19 clear it was simply a mistake that they never changed the
20 field on the claim that changes them from TTD to PTD.
21 Letters have been sent out saying you're Perm Total. You
22 know, COLAs have been paid and keeping track on the
23 computer, they have never been changed. There was no
24 question that they should have been classified as Perm
25 Total. I think you're talking about a whole different
1 group, when the primary issue remains today whether or not
2 they're Perm Total and I don't think that can be considered
3 a part of the group we're dealing with.
4 THE COURT: No, we're for people that are clearly
5 Permanently Total Disabled and that there's really not an
6 issue about it. And I think what I'm hearing from Steve I
7 think is more of a quality control issue to make sure
8 they're scrutinized closely enough so you can make a
9 good-faith determination. But I think ultimately the
10 insurer has to make that call because they're the ones that
11 are going to determine whether they dispute Total Permanent
12 Disability. If they do, they're not going to be included
13 in the class, no matter how hard you argue, because they'd
14 have to litigate it.
15 MR. ANGEL: I think -- I know this is my opinion
16 and it doesn't mean much, but I agree with what you're
17 saying that it's a statistic or a factual battle, it
18 shouldn't, that's not part of this case and it shouldn't be
19 part of it, but if it's one where you, I, or Steve would
20 look at it and immediately recognize that it's obviously
21 Perm Total, even if they dispute it, I think the Court
22 should either --
23 THE COURT: If they dispute it and they dispute it
24 in bad faith, then they've got -- but that's -- we're
25 looking for stuff that's undisputed.
1 MR. ANGEL: I generally agree with that.
2 MR. DALE: One of the problems, of course, is a
3 lot of these people are underrepresented, that's the thing.
4 THE COURT: I know, but I can't inject the
5 attorneys in this case and I know you're doing a good job
6 for your clients, but I can't inject you in there and give
7 you a carte blanche to go in there and look at all these
8 claims and represent all these claimants. Although it
9 would be nice to do, but I just can't do that.
10 I mean, there is some risk that we're not going to
11 identify some people that should be, but this proceeding
12 doesn't go that far. It doesn't allow us to go in and look
13 at every case and determine whether or not, in fact,
14 they're Permanently Totally Disabled and make payments on
15 that basis, because we still have the old system where if
16 there is a dispute, you can always come to court and then I
17 have to litigate it, and that's the situation we'd be put
18 in, but you'd just basically be out there looking for
20 MR. ROBERTS: Judge, how could we know whether or
21 not they were applying the proper criteria or as you
22 discussed, whether they were acting in good faith, unless
23 we saw the file and said, hey, this is obviously, well,
24 nobody would disagree a PTD case and you're classifying it
25 as TTD.
1 THE COURT: I guess that's the quality-control
2 issue, and that's something that's coming full circle, that
3 needs to be discussed and I think it needs to be discussed
4 among all of you. I think there's some benefit to that. I
5 think there's some benefit for them to have your input in
6 there because if you are satisfied with what they're doing,
7 then they're going to be better protected as far as any
8 bad-faith claim is concerned.
9 MR. DALE: What about an independent special
10 master or someone independent from us acting under the
11 Court's supervision?
12 THE COURT: To make -- see, again, that kind of
13 thing would be involved if we were going make a factual
14 determination of whether, in fact, they were Permanently
15 Total Disabled and I don't think we go that far. I think
16 the only thing we can do is make sure that the process is
17 fair, that you're satisfied that the process is fair, and
18 that they're doing a good job of trying to identify them as
19 far as individual disputed cases. If they still dispute
20 it, then I can't --
21 MR. DALE: I'm thinking to maintain some anonymity
22 as far as the file is concerned.
23 THE COURT: Well, because --
24 MR. DALE: Especially looking at more than -- I
25 think that was a concern perhaps.
1 THE COURT: Well, I've got a protective order in
2 the case, in effect, in all these cases, don't I?
3 MR. JONES: No.
4 THE COURT: We should have.
5 MR. JONES: We haven't really divulged other than,
6 for example, in my list, we have a name, some already
7 represented by counsel, and the list has a claim number,
8 but I don't have --
9 MR. ANGEL: Not made public. I don't think
10 disclosing something, that basic information violates
12 MR. JONES: Right. Your Honor, the whole idea is
13 to avoid -- not that anyone here, the attorney going out
14 and trying to contact someone, and so with the information
15 I provided Geoff, I just don't think that's possible.
16 MR. DALE: But again, if you have a TTD person, it
17 might be best that the file be reviewed by someone other
18 than us that would report to the Court concerning whether
19 or not there's a quality-control issue.
20 THE COURT: Before I get a master in here, I think
21 it's better to have you involved and be satisfied because
22 if you are satisfied, then there's no reason at all for an
23 independent master, and I think I can protect the
24 confidentiality with a confidentiality order. I have done
25 that in other cases. I initially had a problem where I
1 thought an attorney had abused it and I hadn't been clear
2 enough, probably, about the confidentiality aspect. But I
3 think everybody understands you're not to use that list to
4 go out to solicit, you're not to disseminate it, that sort
5 of thing. And if there's not a confidentiality order in
6 effect already in Fisch, Frost & Rausch, I'll issue one.
7 MR. OVERTURF: There is.
8 THE COURT: Okay, I think there is and I probably
9 need to issue one in your case too.
10 MR. ANGEL: Sure. I don't think you have but I
11 have no problem --
12 THE COURT: Larry, would you check and if there
13 isn't, get our standard confidentiality order that we've
14 issued in the other cases? Clara can get it to you out of
15 one of the files.
16 MR. ROBERTS: Judge, just so I understand, you
17 mentioned two issues, the criteria to be used to go back
18 and examine the TTD to see if they should, in fact, be PTD;
19 and the second was whether the insurers have done a good
20 job trying to identify the TTD claimants applying this
21 criteria. Is the Court going to say what those criteria
22 are? And then as far as whether or not the insurer is
23 doing a good job trying to identify the PTD claimant, is
24 that what you want us to try to work out between ourselves?
25 THE COURT: Yeah. I mean, basically I don't want
1 to have to set the criteria because I'm not sure I should
2 be setting criteria.
3 MR. ROBERTS: Both of those issues you want us to
4 see if we can work out ourselves?
5 THE COURT: I want -- you know, they want to go
6 through the process where they're trying to identify and
7 the quality assurance issue would be if you're satisfied
8 that they're making a good-faith effort to do, not whether
9 or not, in fact, there's an argument over Permanent Total
10 Disability. The legitimate argument that goes out, no
11 question about, if you think they're not -- they don't have
12 a legitimate argument, this is so clear that nobody could
13 ever disagree, then you ought to be talking about how
14 they're reviewing it and come to some consensus about those
15 sorts of things.
16 And it may be something that you spot, it may
17 never arise, and then and only then should you be coming
18 back to me and saying, hey, we need to talk about this, and
19 then I'll be happy to talk about it.
20 MR. ROBERTS: I'm just wondering, I can certainly
21 understand that we ought to get together and see if we can
22 set the guidelines for identifying the PTD claimants, but
23 as to the second criteria, whether or not they're doing a
24 good job trying to identify the PTD claimants using those
25 guidelines, how are we going to know that unless we get to
1 review the file?
2 THE COURT: Well, that's the quality-control issue
3 and that's what I want you to talk about. If there is some
4 way -- if they're agreeable to your doing it and we've got
5 a confidentiality in effect --
6 MR. ROBERTS: Got you.
7 MR. ANGEL: So just so I can understand it, let's
8 say we identify a file and we submit it slipped through the
9 cracks of the standards, it's not a legitimate argument, we
10 should really be talking adjusting the standards, not
11 fighting about the facts of that one case. Adjusting the
12 standards so that case is included and we feel comfortable
13 with the rest that would be included that are appropriate.
14 THE COURT: Right.
15 MR. ANGEL: Discussing modifying the standards,
16 than bickering about the facts of the case.
17 THE COURT: Right, and I'm not sure what those
18 standards are. I mean, obviously if letters have gone out
19 saying you're Permanently Totally Disabled and haven't been
20 changed, that's an easy case. Now if, for example, you
21 agree to some sort of file review and you're doing a
22 sampling and looking at some files just to see and you're
23 discovering several of these that have those kinds of
24 letters and they haven't been included, then something is
25 wrong, and you need to talk about the process, about what's
1 happening there to make sure that those get included.
2 Beyond that, I'm not sure what those standards are going to
3 be. I mean, that would be the obvious, that's the most
4 obvious one.
5 MR. ROBERTS: We've been real successful so far in
6 working things out with the State Fund, and Greg and Brad
7 have been real good about working with us, so I'm hopeful
8 we can work this out too, and we'll give it our best shot.
9 Hopefully it doesn't become an issue but I just wanted to
10 make sure that I was clear on what the Court had in mind on
12 MR. OVERTURF: And I agree with Steve entirely.
13 We need to visit with Brad and maybe we can talk to see
14 what we can do to see what we've got. I'm struggling a
15 little bit how we come up with a criteria that doesn't
16 essentially amount to a -- by judicial fiat. You know,
17 we're going to say if this person meets this, this, this,
18 and this criteria, you are therefore Perm Total. We can do
19 that by agreement, but if there's not agreement, that's
20 simply a litigated -- a case to be litigated.
21 MR. ROBERTS: A good start is telling us what
22 criteria have been used thus far, what the State Fund -- we
23 can look at that and say, well, that looks sensible or this
24 has to be changed, we can work that out.
25 THE COURT: It may be a matter of reviewing some
1 of these files and determining -- I mean, when you say a
2 Permanent Total and you know it's uncontested, there may be
3 certain features about that that you can apply on a more
4 universal basis. I don't know what those features are. I
5 think counsel are going to be able, better, to determine
6 what those features are and maybe in the process of doing
7 the file review, that's what they'll do.
8 MR. OVERTURF: Okay. Really, essentially, what we
9 first need to look at, as Steve said, the criteria that we
10 use, the criteria that we feel is sufficient that someone
11 is clearly Perm Total and should have been declared Perm
13 MR. ROBERTS: And I would hope that it should be
14 subjective as possible so it doesn't leave subjectivity on
15 the part of whoever has been reviewing these.
16 THE COURT: Okay, more talking.
17 MR. OVERTURF: More talking. Most of my life at
18 this point is talking about common-fund cases.
19 MR. ROBERTS: That's a common complaint.
20 THE COURT: Okay. Geoff, how long do you think it
21 will take you to get some statistics together to run by
23 MR. ANGEL: Thirty days. I can probably do it a
24 lot quicker than that because I'm not going away for the
25 holidays so I will say before the 1st, if you want to set a
2 THE COURT: Why don't you get back to me in a
3 month and tell me where you're at on that point? So the
4 idea is to reach some sort of consensus on a period of time
5 a claimant is on Temporary Total Disability, which would
6 act as a trigger for looking at the file.
7 Okay, what else do we need to do today? Big
8 enough job?
9 MR. DALE: Are there issues regarding, Your Honor,
10 in regard to settlement of claims subsequent to decision?
11 I know that that might be an issue if, in fact, Plans 1 and
12 2 are going to be included, and if, in fact, the notice has
13 been sent out to the carriers, lien notice. What kind of
14 control do we have about settlement of cases that is
16 THE COURT: Well, I don't think I have any control
17 of that at this point in time. You may have a remedy if
18 they settle a case and don't withhold any of the attorney
19 fee and the Supreme Court says that you're entitled to the
20 attorney fee, then you could go back and make the claim
21 against the insurer or even the claimant. The lien would
22 be there, so I suppose you could make the claim initially
23 against the insurer.
24 MR. DALE: I guess the issue then would be that we
25 do have to have some information about settlement, right?
1 If it occurred subsequent in time to the decision.
2 MR. ROBERTS: Because otherwise we wouldn't have
3 any information to assert that control you're talking
5 THE COURT: Well, you're talking about if they do
6 the global.
7 MR. ROBERTS: Or, for example, they want to settle
8 something on the disputed case to try to get around the
9 effect of Rausch.
10 MR. ANGEL: Then the numbers that Larry has there,
11 I think it's 25 percent, 4 or 5 out of the 14.
12 MR. JONES: I'm sorry, what's the question?
13 MR. ANGEL: It's a pretty high number of claims
14 they settled as Perm Total. I don't know what the date is.
15 THE COURT: Before or after Rausch?
16 MR. JONES: We gave the dates.
17 MR. ANGEL: They're all before, and it's 4 of the
18 14, settled.
19 THE COURT: We can talk about that if we get to
20 that issue.
21 MR. DALE: Because, again, some of these people
22 may be unrepresented, gets into issues there.
23 THE COURT: Well, we put the insurers on notice of
24 the liens, so I don't think we can do anything more about
25 it now. I probably can't and I'm certainly not inclined to
1 even if I could drag all the insurers in here and start
2 placing --
3 MR. DALE: I'm not saying that. I just put it out
4 as an issue more for Larry's situation because I'm not
5 statistically apprised as to what's going on there.
6 THE COURT: Yeah, Larry is a aware of the lien
8 MR. JONES: Very aware, Your Honor. We're still
9 settling cases. We've taken a position of whether --
10 should withhold or not withhold a lien.
11 THE COURT: At their peril.
12 MR. JONES: The nature of life.
13 THE COURT: Okay. Anything else we want to talk
15 (No response given.)
16 All right. Why don't you get back to me within a
17 month on two things: No. 1) Whether we can get a consensus
18 on the length of time on Temporary Total Disability to
19 trigger an inquiry; No. 2) Between Larry and Geoff, the
20 additional facts we need or affidavits we need to brief the
21 remaining legal issues, and also give me a briefing
22 schedule, give me a briefing schedule. Okay, that's it.
23 We're adjourned.
25 (The hearing concluded at 11:20 a.m.)
1 REPORTER'S CERTIFICATE
4 State of Montana )
5 County of Gallatin)
7 I, Laurine Brinkman, a Registered Professional
8 Reporter (RPR) and Notary Public for the State of Montana,
9 do hereby certify that the foregoing proceedings were taken
10 before me at the time and place set forth herein, and that
11 the proceedings were taken down by me in shorthand and
12 thereafter transcribed into typewritten form under my
13 direction and supervision.
14 That the foregoing 47 pages contain a true and
15 correct transcript of my shorthand notes so taken.
16 In witness whereof, I have subscribed my name and
17 affixed my seal this 2nd day of January, 2004.
21 Residing in Bozeman, MT.
My commission expires 03/20/04.
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