TROY W. WESTRE Petitioner
LIBERTY NORTHWEST INS. CORP. Respondent/Insurer.
Submitted: November 2, 2017 (Respondent's Motion for
Summary Judgment), November 13, 2017 (Petitioner's Motion
for Summary Judgment)
ORDER DENYING RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT AND GRANTING PETITIONER'S MOTION FOR SUMMARY
M. SANDLER JUDGE.
Respondent moved for summary judgment, asserting that
Petitioner's medical benefits terminated under the
60-month rule at § 39-71-704(1)(f), MCA (2005). It is
undisputed that Petitioner saw his treating physician within
the 60-month period, but his physician's office made a
mistake and did not bill Respondent for the appointment
within the 60-month period. Because Petitioner's
physician did not send Respondent the bill, Respondent
asserts that the appointment does not constitute use of
medical benefits. Petitioner moved for summary judgment,
arguing that he used his medical benefits within the 60-month
period by obtaining treatment from his physician, and that he
cannot suffer a consequence because of his physician's
office's mistake in failing to bill Respondent for the
Respondent's Motion for Summary Judgment is denied, and
Petitioner's Motion for Summary Judgment is granted.
Petitioner used his medical benefits within the 60-month
period when he saw his treating physician for treatment. As a
matter of law, the physician's office had the duty to
bill Respondent, and Petitioner cannot suffer a consequence
because of his physician's office's mistake in
failing to bill Respondent.
1 Respondent Liberty Northwest Insurance Corporation
(Liberty) and Petitioner Troy Westre dispute the legal
significance of Westre's treating physician's
office's mistake in failing to bill Liberty for an
appointment at which Westre received treatment. Liberty
maintains that because it did not receive a bill for the
appointment, Westre did not use his medical benefits and such
benefits terminated under § 39-71-704(f), MCA (2005),
which provides that medical benefits terminate if not used
for 60 consecutive months. Westre argues that he used his
medical benefits within the 60-month period by obtaining
treatment from Chriss A. Mack, MD, and that he cannot suffer
a consequence because Dr. Mack's office made a mistake
and did not bill Liberty within the 60-month period. He
further seeks costs, attorney fees, and a penalty.
2 The following facts are undisputed.
3 On September 12, 2005, Westre suffered an injury to his
back within the course and scope of his employment for
Johnson Brothers Construction.
4 Liberty accepted liability for his claim.
5 In 2006, Westre underwent a discectomy at L5-S1.
Thereafter, Westre followed up with his surgeon, Dr. Mack,
who prescribed low-dose narcotic medicine,
anti-inflammatories, and muscle relaxants.
6 The parties settled Westre's indemnity and vocational
rehabilitation benefits and reserved his medical benefits.
7 On October 24, 2007, Dr. Mack informed Liberty's life
care planner that Westre would require annual lifelong
follow-up visits; that Westre would need ongoing medications
when necessary; and that it was probable Westre would need a
fusion or placement of the DIAM device on his lumbar spine in
8 On February 6, 2012, Westre saw Dr. Mack for back pain.
Liberty received the bill from this appointment, and the bill
from the x-ray that Westre received at the appointment,
within 30 days. On February 10, 2012, Westre filled a
prescription from Dr. Mack. Liberty received the bill within
9 On May 10, 2013, Liberty wrote Westre and attempted to
settle his medical benefits for $8, 500. Liberty stated that
it would continue to handle Westre's claim if he
preferred to keep it open.
10 On July 2, 2013, a Liberty claims adjustor wrote in the
claim file "if claimant resumes treatment, file will
remain open indefinitely." On January 21, 2014, a
Liberty supervisor wrote in the claim file: "Montana
claim assigned to pension desk for oversight of lifetime
11 On March 11, 2016, Westre returned to Dr. Mack for
treatment of his residual back pain and intermittent
right-leg pain. Dr. Mack's impression following his
examination was that Westre "is suffering from
degenerative disc disease at L5-S1 subsequent [to] a
microsurgical discectomy for a largely well-managed right leg
pain" and that his "progressive symptoms of back
pain are most likely related to aggressive degenerative
changes." Dr. Mack prescribed Lortab and Robaxin and
noted that Westre was taking over-the-counter
12 On May 1, 2017, Dr. Mack's office sent a Provider
Request Authorization Form, requesting that Liberty authorize
Westre to see Dr. Mack. Dr. Mack's office had not
scheduled the appointment, explaining on the form that Westre
"was told his claim was closed for LNW not having
rec'd this 2009 note (the bill for that visit was paid -
so not sure how claim was closed. Here is the note
13 On May 2, 2017, a Liberty claims adjustor wrote Dr.
Mack's office stating that Westre's medical benefits
terminated under § 39-71-704(1)(f), MCA, because he had
not been "treated since 2/6/12." Liberty also
explained, "The last treatment that we paid for was
2/6/12. Therefore, Mr. Westre's benefits closed
14 At her deposition, Liberty's adjuster testified that
it was Liberty's position that Westre had not had medical
treatment for 60 consecutive months:
Q. What was your reasoning for terminating Troy's medical
A. Per the statute, he had gone 60 months without medical
treatment or submitting treatment and bills to us for
15 On May 8, 2017, Dr. Mack's office notified Liberty
that Liberty's statement that Westre had not been treated
since February 6, 2012, was false. Dr. Mack's office told
Liberty that Dr. Mack treated Westre on March 11, 2016. Dr.
Mack's office explained that it made a mistake in not
billing Liberty for Westre's appointment: "Mr.
Westre had a visit added on 3/11/16 (the day of appt). The