MICHAEL E. HEISLER Petitioner
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for HINES MOTOR COMPANY Employer.
ORDER DENYING SUMMARY JUDGMENT
Claimant challenged State Fund's refusal to recognize his
choice of treating physician or to pay certain medical bills.
Administrative requirement that claimant obtain approval
prior to changing treating physician does not violate
statutory or constitutional provisions.
Michael E. Heisler (Heisler), alleges that the
respondent/insurer, State Compensation Insurance Fund (State
Fund), unreasonably refused to approve his choice of a
treating physician and has failed to pay certain medical
bills. He is now pursuing summary judgment despite his
acknowledgment, found at page 3 of his Memorandum of
Authorities in Support of Petitioner's Motion for Summary
Judgment, that after the filing of the Petition for
Trial the respondent recognized his choice of physician and
paid the contested medical bills. His Motion for Summary
Judgment is denied.
and Procedural Background
was injured in an industrial accident on June 28, 1993, while
working for Hines Motor Supply Company (Hines) in Great
Falls, Montana. (Petition for Trial ¶ 1; Response ¶
1.) At the time of the accident, Hines was insured by the
respondent, State Fund. (Response ¶ 1.) The State Fund
accepted liability for the claim. (Id.)
dispute arose concerning Heisler's treating physician. In
his Petition for Trial, Heisler alleges that he chose Dr.
Richard A. Nelson as his treating physician and that the
State Fund refused to recognize his choice. (Petition for
Trial ¶S 9, 10 AND 14.) In its Response to Petition the
State Fund alleges that Heisler "changed" treating
physicians without its prior approval. (Response to Petition
¶ 2.) Exhibit 1 to the Insurer's Response to
Petitioner's Summary Judgment Memorandum suggests that
claimant was initially treated for his injuries by Dr.
William Shull. The State Fund further asserts that it is not
responsible for medical treatment by Dr. Nelson or for
treatment ordered by him because Heisler did not obtain its
prior approval of Dr. Nelson. (Id.)
Petition for Trial, Heisler itemizes a number of unpaid
medical bills which are related to Dr. Nelson's care. The
bills include Dr. Nelson's bills, pharmacy bills and
charges for a cervical collar and an MRI.
Petition for Trial contains the following prayers for relief:
a. Whether the insurer acted reasonably in refusing to
recognize Dr. Richard A. Nelson as the Petitioner's
treating physician and/or to authorize the Petitioner's
consultation with a neurologist of his choice for the
neurological conditions from which he suffers;
b. Whether the Claimant has a right of choice of his
physician under the provisions of § 33-22-111 M.C.A.
c. Whether the Insurer has a right to interfere with the
Petitioner's full freedom of choice of physician pursuant
to Article II Sections 3, 4 and 10 of the 1972 Montana
Constitution and the 9th and 14th Amendments of the United
d. Whether the Petitioner has a right of full freedom of
choice of physicians pursuant to Article II Sections 3, 4 and
10 of the 1972 Montana Constitution and the 9th and 14th
Amendments of the United States Constitution;
e. Whether the Insurer's conduct is reasonable;
f. Whether the Insurer's conduct is unreasonable and
entitles the Petitioner to recover penalties pursuant to the
provisions of § 39-71-2907 M.C.A.;
g. Whether the Petitioner is entitled to recover his
attorney's fees and costs incurred herein.
did not request payment of the unpaid medical bills in his
prayer. However, the Court believes that such request is
matter was originally set for trial during the week of June
27, 1994. However, on June 6, 1994, Heisler filed his motion
for summary judgment, along with a supporting memorandum of
law. In view of the lateness of the filing, and the lack of
any supporting affidavits or discovery, I confirmed the trial
setting and postponed consideration of Heisler's
arguments until such time as the parties submitted proposed
findings of fact and conclusions of law. Order Confirming
Trial Setting; Order Postponing Briefs (June 8, 1994).
for both parties then agreed that the substantive issues
raised by the Petition for Trial were legal and not factual,
and that they could be submitted by way of an agreed
statement of facts and summary judgment. (June 9, 1994 Letter
of Lawrence A. Anderson to Judge McCarter and June 16, 1994
Letter of Clara Wilson to Mr. Lawrence A. Anderson.) The
Court held a pretrial conference on June 21, 1994. A briefing
schedule was set for the motion for summary judgment and the
trial was postponed. (June 24, 1994 Memo of Clarice V. Beck,
Hearing Examiner.) The trial was reset for the week of
October 3, 1994. (Rescheduling Order (June 24, 1994).) The
briefing schedule was subsequently vacated by agreement of
both counsel. (July 13, 1994 Letter of Norman C. Peterson to
Ms. Clarice V. Beck.)
Court conducted a second pretrial conference on September 26,
1994. The pretrial notes reflect the following:
Counsel agree and the Court concurs that the trial which is
scheduled for the week of October 3, 1994 will be vacated
pending a decision on petitoners' [sic] motion. The
issues ofattorney fees and costs and the penalty will be
bifurcated, until the final resolution of
the pretrial conference the parties submitted a final
PRE-TRIAL ORDER and their briefs on the summary judgment
motion. The final brief was
meantime, the State Fund approved Heisler's choice of Dr.
Nelson and paid the disputed medical bills. That development
is acknowledged in Heisler's Memorandum of Authorities in
Support of Petitioner's Motion for Summary Judgment.
Until after the filing of this summary judgment motion and
initial brief, the State Fund had refused to recognize Dr.
Nelson as Heisler's treating physician; and/or had
refused to authorize his services as a consulting physician.
Until June 13, 1994, the State Fund had refused to pay for
the following medical services and medications incurred as a
result of his industrial injury:
. . .
The State Fund has now recognized Dr. Nelson as Heisler's