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2000 MTWCC 4
WCC No. 9904-8199
FARMERS INSURANCE GROUP
DIAMOND AUTO GLASS INCORPORATED
ORDER GRANTING SUMMARY JUDGMENT DISMISSING PETITION
Summary: Claimant sought an injunction prohibiting insurer from communicating with his medical providers. Both parties moved for summary judgment.
Held: Insurer's are not prohibited from requesting medical information and opinions from claimant's medical providers, but must give notice to claimant or his/her attorney and, in the case of an interview, give claimant the opportunity to be present. In the case of written requests for information, a copy of the correspondence is sufficient.
¶1 The petitioner/claimant, Russell Kline, seeks an injunction prohibiting the respondent/insurer from communicating with his medical providers. Both parties move for summary judgment. Since neither party has sought oral argument, the record was deemed closed and the matter submitted upon filing of the last brief. ARM 24.5.329(5).(1)
¶2 Claimant's petition alleges that the insurer has contacted his medical providers. He alleges that such contacts violate the discovery procedures of this Court and his right to medical confidentiality. He seeks an "Order directing the insurer to comply with the rules established for discovery of information by this Court" and a further "order directing the insurer to instruct their agents to cease engaging in independent ex parte communications with . . . [his] medical providers." (Writ of Supervisory Control to Restrain Insurer from Communicating Directly with Claimant's Medical Providers at 4.)
¶3 In its Brief in Support of Motion for Summary Judgment the insurer set out a list of uncontroverted facts numbered 1 through 24. (There was no number 3.) In his answer brief the claimant "disputes FARMERS [sic] statement of uncontroverted facts", however, it appears that his disagreement with the facts is based on what he characterizes as "editorialized selected pieces of a whole body of facts" rather than any specific disagreement with the facts themselves. (Combined Brief in Opposition to Insurer's Motion for Summary Judgment and in Support of Claimant's Motion for Summary Judgment at 3.) In any event, he fails to set forth any specific facts showing that the facts enumerated in the insurer's brief are at issue. A mere allegation that the facts are disputed is insufficient to put the facts at issue; the opposing party must set forth his own supported facts showing that there is indeed an issue of fact. ARM 29.5.329(3) and (7); Koepplin v. Zortman Min., Inc., 267 Mont. 53, 58-59, 881 P.2d 1306, 1309 ("When raising the allegations that disputed issues of fact exist, the nonmoving party has an affirmative duty to respond by affidavits or other sworn testimony containing material facts that raise genuine issues; conclusory or speculative statements will not suffice."). Therefore, the facts enumerated by the insurer are deemed undisputed. Those facts are:
(Brief in Support of Motion for Summary Judgment at 2-3.)
¶4 Claimant does set forth three additional facts of potential significance. First, he alleges that the insurer's medical case manager, Aloni George, made medical appointments for him without his knowledge. (Combined Brief in Opposition to Insurer's Motion for Summary Judgment and in Support of Claimant's Motion for Summary Judgment, [hereinafter "Combined Brief"] final ¶ at 3.) The allegation is based on paragraph 5 of an affidavit of claimant's attorney, and the paragraph is based on inadmissible hearsay information.(2)
Rule 803, Mont.R.Civ.P. Inadmissible evidence will not be considered on a motion for summary judgment. Carelli v. Hall, 279 Mont. 202, 207, 926 P.2d 756, 760 (1996). The only admissible evidence proffered on this point was the affidavit of Ms. George, who states that on February 19, 1999, she was given permission by claimant's attorney to schedule medical appointments for claimant.
¶5 Second, claimant alleges that Ms. George attempted to participate in his physical examinations. (Combined Brief at 3 last ¶.) The allegation was based on a note of the claims examiner concerning an appointment with Dr. Stephens. (Ex. 6 to Combined Brief.) An affidavit of Ms. George states that note concerning Dr. Stephens was with respect to another client (Affidavit of Aloni George) and there is no other indication in the multitude of exhibits presented in connection with the motion that claimant was ever treated or seen by Dr. Stephens. In any event, there is no allegation that Ms. George or any other representative of the insurer was present at any examination of claimant or pursued any request to be present.
¶6 Third, claimant alleges that the insurer's vocational provider, Ms. Blackman, engaged in private interviews with, as well as wrote to claimant's physicians. (Combined Brief at 4 ¶3 and at 2 last full ¶.) The allegation that Blackman conducted private interviews or ever spoke directly to any physician is utterly unsupported. The singular citation claimant makes for this allegation is a letter Ms. Blackman wrote to Dr. Mark C. Deibert asking him if claimant was at MMI and requesting an impairment rating, medical restrictions, and an opinion whether claimant could return to his time-of-injury job. (Ex. 8 to Combined Brief.) Claimant's attorney was copied with the letter. (Id.) Claimant has not presented a shred of evidentiary support for his allegation that the vocational provider, case manager, or anyone else employed by the insurer ever spoke directly with any medical provider.
¶7 Summary judgment may be granted only where uncontroverted material facts establish that the moving party is entitled to judgment as a matter of law. ARM 24.5.329(2); Schelske v. Creative Nail Design, Inc., 280 Mont. 476, 482, 933 P.2d 799, 802 (1997). In this case both parties agree that the issues raised in the petition are essentially legal ones which may be properly resolved by summary judgment. (July 13, 1999 Minute Entry.)
¶8 Initially, one issue the parties should have considered is whether the Court has the power to issue an injunction, for that is in essence the relief requested by the claimant. However, there is an insufficient basis in any event to grant the relief requested by the claimant. The Court therefore treats the case as a request for declaratory judgment and does not address whether it can issue an injunction.
¶9 In his petition the claimant argues that the discovery procedures applicable to actions filed in this Court apply to medical information sought by the insurer prior to litigation. While the assertion is not made in claimant's summary judgment brief, it warrants an answer. That answer is the Court's rules apply only to litigated cases. The rules have no application to or place in the day-to-day adjustment of claims which are not in litigation.
¶10 Claimant's further contention, which is argued in his brief, that insurers are prohibited from directly requesting medical information and opinions from claimant's medical providers is similarly without merit. In seeking benefits, the claimant waived his privilege with respect to medical information pertaining to his industrial injury. Linton v. City of Great Falls, 230 Mont. 122, 134, 749 P.2d 55, 63 (1988). Moreover, as pointed out in Linton, Id. at 133, 749 P.2d at 62, section 50-16-311(2)(e), MCA (1998)(3), expressly provides that a claimant's consent is not required for release or transfer of medical information to a workers' compensation insurer. Linton, which was decided subsequent to Japp v. District Court, 623 P.2d 1389 (1981), does not even preclude the insurer from personally interviewing the claimant's physician, holding:
Id., (emphasis added). All that Linton requires is that prior to any interview, the insurer provide the claimant with notice and an opportunity to be present. "What the [Workers' Compensation] Act does not contemplate are private interviews between the employer or insurer without the knowledge or opportunity of the claimant to be present." Id. The Court went on to say, "[A] personal interview between defendant insurance company and claimant's treating physician must be done openly to allay any suspicion that there is something available to one party and not to the other." Id. at 134, 749 P.2d at 134.
¶11 While the question phrased in Linton was "whether the Workers' Compensation Court erred in allowing State Fund to have private interviews and correspondence with Linton's physicians," the Court addressed only the interviews, not the correspondence. However, the rationale adopted by the Supreme Court with respect to interviews, i.e., requiring them to "be done openly to allay any suspicion that there is something available to one party and not to the other," applies as well to correspondence.
¶12 In summary, Linton holds that the insurer is not required to obtain the consent of claimant to seek medical information or to channel all its requests through the claimant or his attorney. It requires only that claimant or his attorney be notified in advance of any interview so that he or she may be present during the interview. In the case of correspondence, it requires that the claimant or his attorney be copied with the correspondence.
¶13 The adversarial process urged by the claimant has no place in the day-to-day adjustment of claims. One of the principal goals of the Workers' Compensation Act is to return the injured worker to work as quickly as possible. § 39-71-105(2), MCA.(4) Another purpose is to make the system self-administering with minimum reliance on lawyers. § 39-71-105(3), MCA.(5) Requiring insurers to rely upon claimants and attorneys to obtain medical records and opinions would delay exchange of medical information, delay the return of the worker to work or the initiation of rehabilitation, and provide no significant benefit to claimant. It would put attorneys in charge of the flow of information.
¶14 The documentation and affidavits filed in connection with the parties' motions for summary judgment show that requests for medical information were made in writing and that those requests were copied to the claimant's attorney. Claimant has failed to establish any improper conduct on the part of the insurer. Accordingly, his petition is dismissed.
¶15 The petitioner is not entitled to relief. His petition in this matter is dismissed.
¶16 Petitioner is entitled
to neither attorney fees nor costs.
¶17 3. This JUDGMENT is certified as final for purposes of appeal pursuant to ARM 24.5.348.
¶18 4. Any party to this dispute may have 20 days in which to request a rehearing from this Order Granting Summary Judgment Dismissing Petition.
DATED in Helena, Montana, this 18th day of January, 2000.
c: Mr. Geoffrey C. Angel
1. ARM 24.5.329(5) provides:
2. The affidavit reports that the claimant told his attorney that he was "upset because Ms. George had scheduled him for a doctor's appointment at a time that he could not make it." (Ex. 4 to Combined Brief at 2 ¶5.)
3. The section cited in Litton has been repealed and replaced by section 50-16-527(4), MCA. The replacement section contains a parallel provision providing for disclosure of a claimant's medical information to the insurer.
4. Section 39-71-105(2), MCA provides:
5. Section 39-71-105(3), MCA provides:
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