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Wiard v. Liberty Northwest Insurance Corp.

Court of Workers Compensation of Montana

June 8, 2001

RICHARD WIARD Petitioner
v.
LIBERTY NORTHWEST INSURANCE CORPORATION Respondent/Insurer for DAW FOREST PRODUCTS Employer.

          Submitted: June 6, 2001

         APPEALED 8/15/01 - AFFIRMED 10/30/03

          PARTIAL SUMMARY JUDGMENT

          Mike McCarter, Judge.

         Factual 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 benefits.

         Held: 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.

         Topics:

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 months.
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 rule.

         ¶1 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.

         ¶2 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).

         Uncontested Facts

         ¶3 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.

         ¶4 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 ...

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