MICHAEL E. HEISLER Petitioner
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for HINES MOTOR COMPANY Employer.
ORDER REGARDING CONSIDERATION OF DEPOSITIONS
The Supreme Court returned this case to the WCC to allow the
parties to file certain depositions they told the Supreme
Court had not been filed and considered by the lower court.
The Supreme Court invited the WCC to amend its findings and
conclusions in light of said depositions.
The depositions were in fact filed prior to the Court's
ruling on the motion for summary judgment. They were not
included in the WCC's findings and conclusions because
they were not relevant to the issues presented in the
Pretrial Order. Matter returned to the Supreme Court.
Appeals (To Supreme Court): Record on
Appeal. Though Supreme Court returned case to WCC to
allow filing and consideration of depositions parties stated
on appeal had not been considered below, those depositions
had in fact been filed prior to the WCC's ruling on
motion for summary judgment and were deemed irrelevant to the
issues stated in the Pretrial Order.
Supreme Court returned this case to the Workers'
Compensation Court for the purpose of allowing the parties to
file certain depositions which they informed the Supreme
Court had not been filed herein, and for this court ?if it so
desires, to amend its findings of fact, conclusions of law
and decision taking into consideration the depositions."
review of the docket of this case shows that the depositions
at issue, being those of JoAnn Piehl, Charles Edquest and
Mark Cadwallader, were in fact filed long prior to appeal and
prior to this Court's rendering its Order Denying Summary
Judgment and thereafter its judgment. Cadwallader's
deposition was filed October 19, 1994. Edquest's and
Piehl's depositions were filed on November 7, 1994. (See
the "Filed" date stamps on the depositions and
docket items 32, 33 and 34.)
Court did not mention nor give consideration to the
depositions because they were used in conjunction with
arguments outside the issues stated in the Petition for Trial
and Pre-trial Order. Petitioner argued in his briefs that the
depositions proved that the rule requiring approval of a
change of treating physician was arbitrary. (Reply Memorandum
in Support of Petitioner's Motion for Summary Judgment.)
In his Petition for Trial, petitioner challenged the rule on
several bases but not on the basis that it is arbitrary. The
issues set forth in the petition were:
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. In the
Pre-Trial Order, the ...