JANIE L. ROBINSON, Plaintiff and Appellant,
STATE COMPENSATION MUTUAL INSURANCE FUND, Defendant and Appellee.
Submitted on Briefs: September 5, 2018
FROM: District Court of the First Judicial District, In and
For the County of Lewis and Clark, Cause No. BDV 05-790
Honorable Michael F. McMahon, Presiding Judge
Appellant: Lawrence A. Anderson, Attorney at Law, P.C., Great
Appellee: Maxon R. Davis, Davis, Hatley, Haffeman &
Tighe, P.C. Great Falls, Montana
Plaintiff Janie Robinson (Robinson) appeals from the summary
judgment entered by the First Judicial District Court, Lewis
and Clark County, in favor of Defendant State Compensation
Mutual Insurance Fund (State Fund), on Robinson's claims.
We affirm, addressing the following issues:
1. Did the District Court err by denying Robinson's
claims that § 39-71-605, MCA, was unconstitutional
because it permits workers' compensation insurers to
obtain multiple medical examinations of a claimant?
2. Did the District Court err by denying Robinson's
constitutional tort claim?
AND PROCEDURAL BACKGROUND
On July 4, 1996, Robinson suffered a heat stroke-related
injury while working on the South Peak Angus Ranch in Judith
Basin County, Montana. South Peak was insured for
workers' compensation purposes by State Fund, which
accepted liability for Robinson's injury and began paying
expenses related to her medical care. Six years later, in
September 2002, State Fund referred Robinson for an
independent medical examination (IME) by Dr. Bach, for the
purposes of determining the effectiveness of the treatment
Robinson was receiving, assessing whether she suffered from
emotional health problems unrelated to her 1996 injury, and
identifying any permanent restrictions causally related to
that injury. Dr. Bach reported that, in his view,
Robinson's "[c]urrent course of treatment is
appropriate, reasonable, and medically necessary."
In November 2002, State Fund assigned Robinson's case to
Claim Examiner Bridget Disburg. Robinson was then receiving
primary medical care from Dr. Astle and counseling from Dr.
Johnson. Upon her review of Robinson's file, Disburg
noticed that Robinson was taking two forms of
anti-inflammatory medication that seemed inconsistent with
her treatment for a heat stroke injury. Additionally, Disburg
found no treatment plans from either of Robinson's
physicians. In February 2003, Disburg sent a letter to Dr.
Astle and Dr. Johnson inquiring about Robinson's
treatment plan, citing a Montana Administrative Rule
authorizing submission of such plans, and copying Robinson
with her correspondence.
Because Robinson had not yet recovered and was still
receiving treatment for her 1996 injury, in March 2003
Disburg requested a medical records review of Robinson's
case by Dr. Stratford. Robinson was informed by letter of
this records review. Dr. Stratford opined that a medical
panel evaluation would be the most appropriate way to assess
the issues involved with Robinson's care. Disburg
contacted Robinson about Dr. Stratford's recommendation
for a panel IME, and, according to Disburg's affidavit,
Robinson "seemed open to the option." Sam Heigh,
Disburg's supervisor, spoke with Robinson over the phone
in June 2003, wherein Robinson expressed concern about the
second IME, but indicated she was willing to participate. In
addition to Dr. Stratford, the panel consisted of a
psychiatrist, a neurologist, and a psychologist. The IME was
conducted in September 2003.
Dr. Stratford, authoring the panel's report, stated that,
while acknowledging Robinson's need for further treatment
of her depression, he would not "endorse" the
current course of Robinson's treatment, adding "[b]y
no means do I mean to denigrate or be critical of the therapy
that has occurred because I believe it has been very helpful.
However, it does need to be very much more directed toward
solutions . . . ." He concluded with a recommendation to
"[c]ontinue to have [Robinson] work with this
psychologist as long as it is aimed toward a goal-directed
cognitive treatment of depression-perhaps even on a weekly
basis up to six months-with some clear indication of value
past that point." In December 2003, Disburg forwarded
the panel's report to Dr. Astle and renewed her request
for submission of a treatment plan.
Robinson suffered an injury to her lower back while working
at South Peak Angus Ranch in March of 2004, which was still
insured by State Fund at that time. State Fund accepted
liability and began paying for medical care associated with
this injury as well.
In May 2004, addressing Robinson's ongoing psychiatric
care related to the 1996 injury, State Fund requested that
Robinson's psychiatrist, Dr. Engstrom, provide a
treatment plan, including "a timetable for the
implementation and duration of the treatment." The
letter instructed that a narrative report would need to be
submitted at the end of the designated treatment period
"prior to initiating any additional services," and
that "[p]ayment for any future services will be
suspended pending receipt of the treatment plan." In
August 2004, Robinson's therapist, Dr. Johnson, advised
State Fund that Robinson's treatment would continue for a
minimum of twelve months or "into the unforeseeable
In light of a review of Dr. Johnson's progress notes and
Dr. Stratford's recommendations, State Fund, in November
2004, suspended payment for further treatment of Robinson by
Dr. Johnson, in favor of and regular visits with Dr. Astle
and biofeedback treatment, which State Fund had approved.
That decision was reversed one month later and State Fund
resumed its payment of Robinson's psychiatric services.
Dr. Astle later reported that Robinson had "reached
maximum psychological stability, maximum healing or maximum
medical healing," effective June 2005. In March 2006,