Submitted: June 6, 2001
8/15/01 - AFFIRMED 10/30/03
PARTIAL SUMMARY JUDGMENT
Summary: Claimant suffered a neck injury in
1992 and had surgery. He was thereafter declared at maximum
medical improvement (MMI). He saw a doctor in 1995 about his
neck but the doctor's report indicated a new industrial
injury and the insurer denied payment. Claimant thereafter
did not see a doctor for his neck for over five years and now
seeks medical benefits, as well as temporary total disability
The claim for medical benefits is barred under section
39-71-704 (1991), which provides that medical benefits
terminate if not used for 60 or more months. Claimant's
due process and estoppel claims are rejected. The insurer
merely refused payment of his 1995 claim. He is presumed to
have known the law and could have petitioned the Court at
that time if he disagreed with the insurer's action.
Words and Phrases: Ignorance of the Law.
Ignorance of the laws governing benefits is no excuse and
does not operate to create exceptions to the laws.
Benefits: Medical Benefits: 60 Month
Limitation. Under 1991 law - § 39-71-704 (1)(d)
-an insurer's liability for further medical benefits
terminates if medical benefits are not used for 60 or more
Constitutional Law: Due Process. Failure of
the insurer to inform claimant of 60 month provision limiting
medical benefits under 1991 law does not violate
claimant's right to due process of law.
Estoppel and Waiver: Equitable Estoppel.
Rejection of a single medical bill by the insurer does not
amount to a misrepresentation of a 1991 law which provides
for termination of liability for medical benefits if claimant
fails to use medical benefits for 60 or more months. There
was no representation at all with respect to the 60 month
The claimant in this matter suffered an industrial injury of
his neck on August 5, 1992, while employed by DAW Forest
Products (DAW). At the time of his injury, DAW was insured by
Liberty Northwest Insurance Corporation (Liberty). Following
his injury, still in 1992, he underwent surgery. His surgeon
declared him at MMI in 1993 and last saw him in 1995. In 2000
he underwent additional neck surgery. Through his petition he
seeks payment of his medical and compensation benefits on
account of the 2000 surgery.
Liberty moves for partial summary judgment with respect to
medical benefits, arguing that such benefits are barred by
section 39-71-704(1)(d), MCA (1991), which provides that
medical benefits cease "when they are not used for a
period of 60 consecutive months." Claimant has responded
with his own motion for partial summary judgment urging that
Liberty should be barred from using the section "as a
defense in this matter." Motion for Partial Summary
Judgment (docketed May 18, 2001).
Liberty's statement of uncontested facts refers to seven
exhibits, which it attaches to its brief and incorporates by
reference. The exhibits are numbered A through G.
The facts, as set forth by Liberty and referenced to
exhibits, are as follows:
¶4A Attached as Exhibit "A" is the claim for
compensation regarding the claimant's 1992 injury.
Liberty accepted liability and paid certain wage loss and
medical benefits to the claimant.
¶4B Attached as Exhibit "B" is Dr. Dewey's
letter of 4-22-93 in which Dr. Dewey, the surgeon who
operated on the claimant for his 1992 injury, found the
claimant at maximum medical improvement.
¶4C Attached as Exhibit "C" is Dr. Dewey's
note of 4-25-95 referencing a new injury while the claimant
was working for an employer that was not his 1992 employer.
¶4D Attached as Exhibit "D" is the computer
entry of Cynthia Bean, who was then a Liberty Northwest
adjustor, referencing her telephone conversation with the
claimant on 6-2-95 to the effect that the claimant injured
himself while working for May & Company and it was this
injury that prompted him to see Dr. Dewey in April 1995.
¶4E Attached as Exhibit "E" is a copy of the
Petitioner's Response to Respondent's First Discovery
Requests wherein he makes the following admission:
REQUEST FOR ADMISSION NO. 1: Do you admit that after
your April 25, 1995 visit with Dr. Dewey there was a period
of 60 consecutive months or more during which you did not
receive testing, treatment and/or evaluation by a health care
provided for your 1992 injury?
ANSWER: Admit, to the extent that Liberty Northwest
refused payment for the April 25, 1995 visit. But for
Liberty's 1995 refusal, I would have had at ...