THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA
NORTHWEST INSURANCE CORPORATION
MOTION FOR SUMMARY JUDGMENT
Motion for summary judgment brought by claimant based on letter from
claims adjuster which claimant argues was an acceptance of the claim
without a reservation of rights.
Even if the letter constituted a binding acceptance which could not
be altered by parol evidence or by a subsequent letter, other issues
exist in case precluding summary judgment, i.e., whether claimant's
present medical condition for which she sought benefits was related
to claim which insurer allegedly "accepted," whether TTD benefits
were properly terminated based on claimant working, whether claimant
waived right to assert binding acceptance by not raising that argument
for several years, among other issues.
Judgment: Criteria. Even if the issue raised by claimant in her
motion for summary judgment were resolved in her favor, other issues
exist which require trial and prevent summary judgment in the case.
Motion denied where Court cannot find no triable issue of fact in
¶1 Based on
an alleged occupational disease arising June 1992, claimant Valery Meyer
now seeks summary judgment awarding her temporary total disability benefits
retroactive to early 1994 and continuing so long as she remains temporarily
totally disabled. She also requests medical benefits for the alleged
contends undisputed facts demonstrate the insurer accepted the occupational
disease claim without a reservation of rights. She then argues that
Liberty Northwest Insurance Corporation (Liberty) cannot revoke its
acceptance, hence she is entitled to benefits.
relies in large part upon the following September 20, 1993, letter to
claimant from Claims Adjuster Erika Ayers:
please find our check for $809.60 representing your lost time benefits
from August 5, 1993 through September 17, 1993. Montana Workers' Compensation
laws dictate a 6 day waiting period which is not paid. This period
is from July 28, 1993 through August 4, 1993 which you will see indicated
on your check stub. These monies were based on 2/3 of your average
weekly wage of $193.25 and will be paid on a bi-weekly basis.
As I indicated
to you on the phone, it is important you remain under active treatment
with Dr. Etter. I will be scheduling the independent exam in the near
future and will let you know of the doctor, date and time.
I am also
enclosing a medical authorization form which I need you to sign. This
will be sent to Dr. Etter so I may receive your medical records. Please
return this to me right away.
If you have
any questions, please call.
in Support of Claimant's Motion for Summary Judgment, ¶10; Affidavit
of Erika Ayers Schulz, Ex. 2.)
also points to Compensation Reports submitted by the insurer to the
Department of Labor and Industry during September 1993, which she contends
used the transaction code for initial compensation payment, not the
code for payment on a non-acceptance basis. (Memorandum in Support of
Claimant's Motion for Summary Judgment, ¶7.)
does not dispute the content of the letter or the Compensation Reports,
but submits an Affidavit of Erika Ayers Schultz, the adjuster, which
states in pertinent part:
- Presently, I am a Case
Manager with Liberty Northwest, working in Portland, Oregon. I have
been employed by Liberty since February of 1991.
- I transferred to Montana
for a six month period of time in 1993. It was during that time
that I worked on the Valery Meyer claim.
- I was recently informed
that this 1993 claim is being litigated and I was asked to review
pertinent file materials regarding the adjustment of the file and
my intentions regarding certain communications.
- My first contact with
Ms. Meyer was on September 10, 1993. I phoned her to discuss the
claim, but she indicated that she was not able to talk to me. She
had my phone number and indicated that she would call me when she
felt able to do so. (See Exhibit "1".)
- A week passed and I
still had not heard from her. Consequently, I called her again on
September 17, 1993. I awoke her from a nap and told her I only had
30 days to determine compensability and that I really needed to
get information from her. She indicated she would return my call
later that day. She did call back. (See Exhibit "1".)
- At that time, I did
not have any medical records relating to her condition. I
communicated to her that I was going to begin paying time loss benefits,
but that the investigation into her claim would go forward once
we had been able to obtain information.
- I have reviewed my
letter of September 20, 1993. That letter sets out my intention
to begin making time loss payments, to obtain her medical records,
which we had not received, and to set an independent examination.
(See Exhibit "2".)
- The purpose of that
letter was simply to outline the benefits available and to get the
medical authorization. I had no intention of accepting her claim
and had communicated the same. There was simply no basis for accepting
the claim because we had no documentation to support it.
- My intention was further
reflected in indicating I would set an Independent Medical Examination.
The purpose of the examination was to help determine compensability
of her claimed condition. If I had accepted the claim, there would
be no reason for an independent examination at that point.
Erika Ayers Schulz, at 2-3; emphasis added.)
¶6 The insurer
also points to an October 18, 1993 letter, from the adjuster to claimant,
which provided in part:
As I previously
explained, we have 30 days in which to make a compensability decision
regarding your condition. Those 30 days have expired and I have not
received any medical information relating your condition to your work
exposure. Therefore, we are accepting your condition pending further
medical information. The timeloss benefits you continue to receive
do not represent final acceptance of your claim.
¶7 Summary judgment
may be granted where the uncontroverted, material facts require judgment
as a matter of law. ARM 24.5.329; Schelske v. Creative Nail Design,
Inc., 280 Mont. 476, 482, 933 P.2d 799, 802 (1997).
¶8 In this case,
even if I determine that the September 20, 1993 letter constituted a
binding acceptance which cannot be contradicted by parole evidence or
the subsequent, October 18, 1993 letter, the insurer has raised other
issues which prevent summary judgment. As rephrased by the Court, these
include the following:
there is a causal connection between the claim for "difficulty breathing"
which the insurer is alleged to have accepted and the alleged medical
condition and disability spanning several years for which claimant
seeks compensation. See, LaPlant v. State Compensation Ins. Fund,
1999 MTWCC 75, ¶15.
temporary total disability benefits were properly terminated based
on medical reports that claimant was capable of gainful employment.
claimant waived her right to assert the insurer's acceptance of the
claim by waiting several years, or is judicially or equitably estopped
from asserting the claim at this time or in light of her pursuit of
occupational disease benefits through a claim filed with the Department
of Labor and Industry and now consolidated with this case.
section 39-71-606(5), MCA, Solheim v. Tom Davis Ranch, 208
Mont. 265, 677 P.2d 1034 (1984), and this Court's decision in Gunder
v. CIGNA, 1999 MTWCC 31, allows the insurer to contest the claim
under the facts of this case.
¶9 Other than
noting claimant's failure to persuade me she is entitled to summary
judgment on these issues, I decline to rule more particularly on the
issues raised by the motion. See ARM 24.5.329 (noting summary
judgement in workers' compensation cases may delay trial without corresponding
economies and allowing the Court to decline to consider individual summary
judgment motions if it concludes the issues raised may be resolved as
expeditiously by trial as by motion).
¶10 The motion
for summary judgment is denied.
¶11 SO ORDERED.
DATED in Helena,
Montana, this 12th day of January, 2000.
c: Mr. Andrew
Mr. Steven S. Carey
Date Submitted: October 22, 1999