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Westre v. Liberty Northwest Ins. Corp.

Court of Workers Compensation of Montana

August 14, 2018

TROY W. WESTRE Petitioner
v.
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 JUDGMENT

          DAVID M. SANDLER JUDGE.

         Summary: 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 appointment.

         Held: 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.

         FACTS

         ¶ 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 the future.

         ¶ 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 30 days.

         ¶ 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 medical benefits."

         ¶ 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 anti-inflammatories.

         ¶ 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 again[)]."

         ¶ 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 2/6/2017."

         ¶ 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 benefits?
A. Per the statute, he had gone 60 months without medical treatment or submitting treatment and bills to us for treatment.

         ¶ 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 billing ...


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