ORDER DENYING IN PART PETITIONER'S MOTION FOR
Marian Maas, has petitioned the Court seeking a determination
that she was injured in a March 15, 1995 industrial accident.
According to her petition, Maas injured her cervical spine
when she tripped and fell over a box. The respondent denies
that any industrial accident occurred and alleges that
claimant's neck condition was a preexisting one. Response
to Petition ¶s 1 and 4.
answer to an interrogatory requesting information concerning
preexisting mental and physical defects, the claimant
disclosed that she suffers from a preexisting mental
condition. However, she objected to disclosure of further
information on the ground that her condition is irrelevant to
her claim for compensation, which is based on a physical
injury. She followed up with a motion for a protective order.
In conjunction with that motion she furnished the Court with
copies of medical and psychological records relating to the
treatment of her mental condition. (Exhibit 1.) The records
were apparently furnished for in camera inspection since the
claimant opposes their production and requests that they be
sealed during the pendency of this case, then returned to
of treatment by a psychologist, as well any physician are
normally privileged. §§ 26-1-807 and 26-1-805, MCA.
However, the privilege may be waived by commencing a civil
action or asserting a defense which places the party's
mental or physical condition in issue. Linton v. City of
Great Falls, 230 Mont. 122, 132, 749 P.2d 55, 62,
(1988); State ex rel. Mapes v. District Court of Eighth
Judicial Dist. In and For County of Cascade, 250 Mont.
524, 530, 822 P.2d 91, 94 (1991). The waiver is not without
limits. It "does not apply to any treatment or condition
not related to the action." Linton, 230 Mont.
at 132, 749 P.2d at 62. It does not extend to matters that
are wholly irrelevant or unrelated.
250 Mont. at 530, 822 P.2d at 94. But it does extend to
medical information which is relevant to the existence and
extent of damages, including "whether plaintiff's
current medical or physical condition is the result of some
other cause." Id. Thus, records which are
relevant to whether or not claimant's neck condition is
related to her alleged industrial accident and whether an
industrial accident occurred at all are relevant and must be
petitioner's claim in this case is that an accident
occurred and that she was injured. Respondent contends that
the accident did not occur, hence the claim is a false one.
Respondent makes the following partial offer of proof in its
reply to petitioner's motion:
Respondent believes that the evidence it submits at trial
will show that petitioner had a significant problem with
absenteeism prior to her injury. The evidence will also
indicate that petitioner had used up virtually all her sick
leave prior to her claimed accident. On the day petitioner
claims she was injured, co-workers who worked in close
proximity to the petitioner did not see her fall. There was
no mention of an accident to the company as was the past
custom of the petitioner. The afternoon of her alleged
injury, the petitioner went to her physical therapist, Mark
Amendola, and did not report the injury.
Brief in Opposition to Petitioner's Motion for Protective
Order at 2. Respondent asserts that claimant's
psychological treatment records may contain relevant
information, for example concerning her preexisting medical
condition or her report of an injury.
reviewed the records. These records pertain to treatment of a
mental condition antedating claimant's injury by several
years and are in large part irrelevant. However, in late 1994
and early 1995 there are a number of entries indicating that
claimant was dissatisfied with her job and considering other
employment, and that her mental condition was becoming all
consuming and interfering with her ability to work. Then on
February 27, 1995, there is the following entry:
She [claimant] says that it is all she can do to get herself
to work and cook meals for her children occasionally. She
doesn't have the energy to put on makeup or take a bath.
She is concerned that she won't be able to go on like
this. She has begun to think about whether there is
any way she can get on disability.
at 85, emphasis added.) This statement, along with other
information in the records concerning her difficulties with
her employment, may be relevant to any determination
concerning the occurrence of an accident and claimant's
entitlement to compensation.
possible relevance is mention in the records to
"occipital nerve surgery" and to headaches, since
they may relate to her constellation of cervical symptoms.
Court must balance the respondent's need for relevant
information contained in these records with claimant's
right of confidentiality. Mapes, 250 Mont. at 530,
822 P.2d at 94. Claimant's attitude towards work and her
general mental condition on March 5, 1995, are relevant as
they may indicate a motive to falsify a claim. Her thoughts
concerning "any way she can get on disability" is
similarly relevant to assessing her credibility and whether
an accident in fact occurred. On the other hand, the
specifics concerning her underlying mental condition and
treatment for that condition appear to add little which would
be helpful in evaluating this case.
therefore determined that some but not all of the records
should be turned over to counsel for respondent. In light of