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Cary v. Lumbermens Mutual Casualty Co.

Court of Workers Compensation of Montana

September 23, 1994

BOBI JO CARY Petitioner
v.
LUMBERMENS MUTUAL CASUALTY COMPANY/KEMPER INSURANCE COMPANY and| INTERMOUNTAIN CLAIMS OF MONTANA, INCORPORATED Respondent/Insurer for BUTTREY FOOD AND DRUG Employer.

          ORDER ON MOTION TO COMPEL; ORDER BIFURCATING ISSUE

          Clarice V. Beck, Hearing Examiner Judge.

         Petitioner, Bobi Jo Cary (claimant), has filed a motion to compel the respondent to fully and properly respond to "Claimant's Request for Production Nos. 2 and 3." Specifically in question are the documents contained in Exhibit B-2 and Exhibit C-2. Respondent's answer brief with attached exhibits for an in camera inspection were filed on September 12, 1994, and claimant's reply brief was filed on September 14, 1994.

         In recent discovery orders, the Court has discussed the protection afforded by attorney/client privilege and the work-product doctrine. Blount v. Conagra, Inc., WCC No. 9304-6769 (March 16, 1994); Adels v. Cigna Insurance Co., WCC No. 9307-6831, Order Amending Prior Order Denying Motion to Compel, (March 10, 1994) and Yager v. Montana Schools Group Insurance, WCC No. 9308-6872 (March 14, 1994). The review herein has been conducted pursuant to the guidelines set out in those decisions and the Court will not engage in a document by document discussion of the reasons for its determinations.

         Claimant has made a broad request for all of the withheld documents, focusing on the primary issues of the her entitlement to further medical care, temporary total disability benefits and total rehabilitation benefits as a result of the July 24, 1992 injury. (Claimant's Motion to Compel) Also at issue is the question of the penalty.

         Respondent asserts that the documents requested are protected by the attorney/client privilege and/or work-product doctrines relying on the Palmer v. Famers Insurance Exchange, 261 Mont. 91, 861 P.2d 895; Kuiper v. District Court, 193 Mont. 452, 465, 632 P.2d 694 (1981) and Cantrell v. Henderson, 221 Mont. 201, 718 P.2d 318 (1986). As noted in Adels, supra, "These cases do not hold that work product protection never applies to insurers' claim files, only that it does not automatically apply." In Burlington Northern v. District Court, 239 Mont 207, 216, 779 P.2d 885 (1989), the Supreme Court noted that "no absolute rule can be formed to apply to every case" and that "a balance must be sought which requires appropriate disclosure of facts, without allowing a party to build its case on the other party's efforts." Again it is noted that the primary issue in this matter is the claimant's entitlement to benefits. This Court in Adels v. Cigna Insurance Co., WCC No. 9307-6831, Order Denying Motion to Compel; Order Bifurcating Issues (February 16, 1994) held:

However, the claimant must prove his entitlement to benefits as a prerequisite to any penalty. Section 39-71-2907, MCA. His interest in the documents is therefore a contingent one which can be safeguarded by bifurcating the penalty issue from the underlying claims. Bifurcation is expressly countenanced in bad faith actions against insurers. It is permitted in any action brought by an insured "where justice so requires" and is mandatory in a third party action against an insurer. Section 33-18-242(6), MCA. While the cited section does not govern a request for a penalty under the Workers' Compensation Act, it does provide both a precedent and guidance for reconciling the conflicting interests presented in this case.

         In the event petitioner prevails on her claim for benefits, the Court will again review the documents it has determined to be protected, order their disclosure if appropriate, and schedule an expedited hearing to resolve the penalty issue.

         Two sets of documents, comprising approximately 275 pages were submitted to the Court. Respondent failed to include the following pages in Exhibit B-2: 219, 268, 294 and 382. These pages must be forwarded to the Court immediately. The hearing examiner has determined the status of each document as follows:

         Exhibit B-2

Pages 135-136 Attorney/client privilege
158 Attorney/client privilege
219-220 Must be forwarded to the Court for review
227-229 Attorney/client privilege
251 Attorney/client privilege
254 Attorney/client privilege
256 Attorney/client privilege
260-261 Attorney/client privilege
268 Must be forwarded to the Court for review
292-293 Attorney/client privilege
294 Must be forwarded to the Court for review
378 Attorney/client privilege
380-381 Attorney/client privilege
382-383 Must be forwarded to the Court for review
384-387 Work product
437-439 Discoverable by claimant
453-454 Discoverable by claimant
476 Discoverable by claimant
481-482 Discoverable by ...

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