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Taves v. AIU Insurance Co.

Court of Workers Compensation of Montana

November 30, 1999

DIANE M. TAVES Petitioner
v.
AIU INSURANCE COMPANY Respondent/Insurer for BETTER BUSINESS SYSTEMS (CENTRAL PAINT & GLASS) Employer

          Date Submitted: October 6, 1999

          ORDER ON DISCOVERY DISPUTE

          Mike McCarter Judge

         Summary:

         Discovery dispute in case where sole issue is whether claimant should be referred to medical center in Denver for treatment of pulmonary condition which insurer accepted as occupational disease. Insurer sought to compel resumption of claimant's deposition, which it terminated without calling the Court, after claimant's counsel advised her not to respond to questions about details of her personal, educational, employment and medical history and suggested calling the WCC for immediate resolution of the issue. Insurer also sought to compel responses to interrogatories about health conditions other than the pulmonary condition, and to compel production of one doctor's file. Sanctions were requested.

         Held:

         WCC refused to order resumption of deposition, finding the questions posed by insurance counsel not reasonably calculated to lead to admissible evidence given the single issue raised and accepted liability status of the case. The Court also noted that respondent's counsel chose to terminate the deposition without calling the Court despite the existence of ARM 24.5.316(8) and despite that counsel's prior experience with immediate telephonic conferences with the WCC judge on discovery disputes. Claimant was ordered to provide basic medical information about other medical conditions from which she now suffers or has suffered since the onset of her pulmonary condition and about medications she has taken since that onset, as other medical conditions and medications, per a doctor's testimony, could impact evaluation and treatment of the respiratory condition. Where doctor's file at issue had already been produced during deposition, motion to compel production of that file was moot, though Court ordered that file sealed as to all persons other than parties, their representatives, and reviewing Court. Request for sanctions denied where claimant's position on discovery was substantially justified.

         Topics:

Constitutions, Statutes, Regulations and Rules: Workers' Compensation Court Rules: ARM 24.5.316. Where insurance counsel moved to compel claimant to appear at a resumed deposition, WCC considered the fact that said counsel had rejected the suggestion of claimant's counsel to contact the WCC during deposition for resolution of the dispute, rather than to terminate the deposition. The deposition was not ordered resumed where the questions giving rise to the dispute were not reasonably calculated to lead to admissible evidence and insurance counsel unilaterally chose to terminate the deposition rather than seek an immediate ruling.
Constitutions, Statutes, Regulations and Rules: Workers' Compensation Court Rules: ARM 24.5.322. Where insurance counsel moved to compel claimant to appear at a resumed deposition, WCC considered the fact that said counsel had rejected the suggestion of claimant's counsel to contact the WCC during deposition for resolution of the dispute, rather than to terminate the deposition. The deposition was not ordered resumed where the questions giving rise to the dispute were not reasonably calculated to lead to admissible evidence and insurance counsel unilaterally chose to terminate the deposition rather than seek an immediate ruling.
Discovery: Compelling Discovery. Where insurance counsel moved to compel claimant to appear at a resumed deposition, WCC considered the fact that said counsel had rejected the suggestion of claimant's counsel to contact the WCC during deposition for resolution of the dispute, rather than to terminate the deposition. The deposition was not ordered resumed where the questions giving rise to the dispute were not reasonably calculated to lead to admissible evidence and insurance counsel unilaterally chose to terminate the deposition rather than seek an immediate ruling.
Discovery: Compelling Discovery. Where doctor's file subject to motion to compel was produced at deposition, objection to production moot, though Court did order file sealed and available only to parties, their representatives, and a reviewing Court.
Discovery: Depositions: Generally. Where insurance counsel moved to compel claimant to appear at a resumed deposition, WCC considered the fact that said counsel had rejected the suggestion of claimant's counsel to contact the WCC during deposition for resolution of the dispute, rather than to terminate the deposition. The deposition was not ordered resumed where the questions giving rise to the dispute were not reasonably calculated to lead to admissible evidence and insurance counsel unilaterally chose to terminate the deposition rather than seek an immediate ruling.
Discovery: Interrogatories. Where sole issue was whether claimant should be referred to medical center in Denver for treatment of pulmonary condition which insurer accepted as occupational disease, claimant objected to interrogatories asking for information about other medical conditions or medications taken for other conditions. Claimant was ordered to provide basic medical information about other medical conditions from which she now suffers or has suffered since the onset of her pulmonary condition and about medications she has taken since that onset, as those other medical conditions and medications, per a doctor's testimony, could impact evaluation and treatment of the respiratory condition.
Discovery: Sanctions. Sanctions not awarded where claimant's positions during several pronged discovery disputes were substantially justified, even though claimant ordered to provide some information she had previously refused to provide. Even those objections ultimately overruled by Court were reasoned and tailored to the issues in the specific case.

         ¶1 Respondent, AIU Insurance Company (AIU), moves to compel claimant to answer deposition questions regarding her personal, educational, employment, and medical history predating her occupational disease claim. It further seeks an Order directing claimant to provide additional medical information and records in response to Interrogatories Nos. 2, 4, 5, and 6 and Request For Production No. 2. (Respondent's Motion to Compel Discovery and Request for Sanctions.)

         Factual Background

         ¶2 Claimant has a chronic pulmonary condition that began in November, 1997. She filed a claim for compensation on November 10, 1997. AIU accepted the claim under the Occupational Disease Act and has paid benefits.

         ¶3 In her Petition for Trial the claimant requests the Court to order AIU to approve and pay for further medical evaluation and treatment at the National Jewish Medical and Research Center in Denver, Colorado. That is the only issue raised in the petition.

         ¶4 In its Response to Petition, AIU alleges that the issue is not ripe for judicial review. AIU alleged: "It has been the position of the Insurer ever since the National Jewish Hospital was recommended by Claimant's internist, Dr. Brice Addison, to obtain a second opinion by a pulmonary specialist before deciding upon the appropriateness of that referral." (Response to Petition, ¶ 1(c).) AIU further alleged that claimant had not cooperated with scheduled independent medical examinations, and had unreasonably limited the medical information available to the insurer, thereby preventing it from obtaining a second opinion. (Id. ¶ 1 (e)-(k).)

         ¶5 On August 23, 1999, claimant was examined by Dr. David Anderson pursuant to an Order Directing Medical Examination issued by the Department of Labor & Industry (Department). Dr. Anderson, a pulmonologist on the Department's panel of occupational disease physicians, reviewed the complete file of claimant's treating physician (Dr. Addison), as well as pulmonary function studies, x-rays, and x-ray reports. (Anderson Dep. at 5-7.) He also took a history from claimant and conducted a complete physical examination, including a test to assess air flows. (Id. at 11.) Dr. Anderson diagnosed

moderate to severe persistent bronchial asthma. Number 1 pulmonary diagnosis. Other diagnoses were Type 1 diabetes mellitus with diabetic retinopathy, treated. ...

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