Malcomson v. Liberty Northwest, 2014 MT 242 During 90 of the nearly 100 years which the WCA has been in effect, the WCA contained no provision allowing agents of the insurer to communicate directly with healthcare providers without prior notice to the claimant, and yet relevant information was obtained by insurers.  Appellant conceded that this system was “workable,” and the insurer’s agents testified at trial that they were able to obtain the information they needed without having private talks with the claimant’s physician.  The method for obtaining relevant medical information in effect prior to § 39-71-604(3), MCA (2003), was narrowly tailored to effectuate the State’s interests.  Therefore, the statute as currently written is overbroad and cannot stand.

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.

Malcomson v. Liberty Northwest [08/16/13] 2013 MTWCC 21 Although the State has a compelling interest in the orderly administration of the workers’ compensation process, § 39-71-604(3), MCA, is not narrowly tailored to effectuate that interest.  Rather, it abrogates a claimant’s ability to safeguard his or her constitutional right of privacy in exchange for an arguably – and debatable – more efficient exchange of information between the insurer and the claimant’s healthcare providers. As applied to the facts herein, § 39-71-604(3), MCA (2007), unconstitutionally violates the claimant’s right of privacy under Article II, Section 10 of the Montana Constitution.

Dewey v. Montana Contractor Compensation Fund [05/16/09] 2009 MTWCC 17 Under § 39-71-604(2), MCA, a signed claim for workers’ compensation or occupational disease benefits authorizes disclosure of information relevant to the claimant’s condition, which may include past history of the complaints or of the treatment of a condition that is similar to that presented in the claim, conditions for which benefits are subsequently claimed, other conditions related to the same body part, or conditions that may affect recovery. In a 2007 claim for benefits relating to carpal tunnel syndrome, the insurer requested and received medical records which included a bout of pneumonia in 1970 and a sore throat in 1974, and forwarded those records to an independent medical examiner for his review. The examiner further found “appropriate” and “important” to include in his report things he learned from these records such as: Petitioner was “born illegitimately”; Petitioner felt suicidal after the death of his grandfather several years before the onset of his alleged occupational disease; and that Petitioner’s father was a drug user. The Court found that Respondent and the examiner misused Petitioner’s medical records in an attempt to malign Petitioner’s character and the Court specifically excluded this information in considering Petitioner’s credibility.

[2003] Thompson v. State of Montana and Liberty Northwest Ins. Corp. and Montana State Fund [10/18/05] 2005 MTWCC 53 Sections 39-71-604(3) and 50-16-527(5), MCA (2003), which allow an insurer or its agent to communicate with a physician or other health care provider about an injured employee’s health care information by telephone, letter, electronic communication, in person, or by other means and to receive from the physician or health care provider the sought after information without prior notice to the injured employee, to the employee's authorized representative or agent, or in the case of death, to the employee's personal representative or any person with a right or claim to compensation for the injury or death are violative of Mont. Const., Art. II, §§ 10 and 17.