Conn v. AmTrust Ins. Co. of Kan.
| Decision Date | 25 February 2020 |
| Docket Number | WCC No. 2019-4673 |
| Citation | 2020 MTWCC 3 |
| Parties | LESLIE D. CONN Petitioner v. AMTRUST INS. CO. OF KANSAS Respondent/Insurer. |
| Court | Montana Workers Compensation Court |
Summary: Petitioner asserts that Respondent's attorney waived the work-product privilege by disclosing his work product to the vocational rehabilitation provider that Respondent hired to prepare a JA in the regular course of Petitioner's claim. Respondent asserts that its attorney did not waive the work-product privilege on the grounds that the rehabilitation provider is Respondent's retained expert.
Held: Respondent's attorney waived the work-product privilege by voluntarily disclosing his work product to the rehabilitation provider. A rehabilitation provider hired by Respondent to prepare a JA in the regular course of a claim is not Respondent's retained expert under Montana law; rather, the rehabilitation provider is a non-retained, hybrid witness. Because Respondent could not have had a reasonable expectation that its attorney's communications to the rehabilitation provider would be kept confidential, Respondent's attorney waived the work-product privilege.
¶ 1 Petitioner Leslie D. Conn moves to compel Respondent AmTrust Ins. Co. of Kansas (AmTrust) to produce the complete files of Travis Stortz, MS, CRC, CCM, LCPC, a vocational rehabilitation provider who AmTrust hired to prepare a job analysis (JA). Conn asserts that she has the right to everything in Stortz's file, including communications from AmTrust's attorney on the grounds that AmTrust's attorney waived the work-product privilege by voluntary disclosure. Relying on a 2007 case from a federal district court, Conn argues that an attorney's voluntary disclosure of his work product to an expert waives the work-product privilege.
¶ 2 AmTrust asserts that, with one exception, it has provided all of Stortz's file. The exception is an email AmTrust's attorney sent to Stortz on September 6, 2019, which AmTrust asserts is privileged as its attorney's work product. AmTrust asserts that it did not designate Stortz as Conn's vocational provider under the Workers' Compensation Act (WCA). Rather, AmTrust asserts that it retained Stortz as its expert witness. Relying upon recent case law from the Ninth Circuit Court of Appeals, AmTrust argues that an attorney does not waive the work-product privilege by disclosing his thoughts and opinions to a retained expert.
¶ 3 On May 22, 2015, Conn suffered an industrial injury to her left shoulder.
¶ 4 AmTrust insured Conn's employer.
¶ 5 Intermountain Claims served as AmTrust's third-party administrator.
¶ 6 In the fall of 2015, AmTrust hired Beth Regan, MRC, CRC, of Vocational Management Services, Inc. (VMS) to prepare a time-of-injury job analysis (JA) and an alternative JA. Regan frequently communicated with Intermountain Claims via email, including sending documents as attachments. In her Progress Report dated October 23, 2015, which Regan sent to Intermountain Claims, Regan wrote that the rehabilitation goal was to, "Assist in the client's return to the work force, as soon as medically released to do so, earning wages equal to or higher than those secured in his [sic] time of injury position." Regan's case notes reveal that she spoke to Conn several times on the telephone and met with her. Regan consistently referred to Conn as her "client."1 After completing a time-of-injury JA and an alternate JA, Regan closed her file.
¶ 7 Conn could not return to her time-of-injury job. However, she returned to a modified position with her employer.
¶ 8 In March 2018, Intermountain Claims hired Stortz - also of VMS - to prepare a JA for a modified position with Conn's time-of-injury employer.
¶ 9 In late March 2018, Stortz met with Conn's employer. On April 2, 2018, Stortz sent an email to Conn's supervisor, stating:
¶ 10 On April 6, 2018, Stortz sent a Progress Report to Intermountain Claims. Stortz stated that the purpose of the referral was, "for Time of Injury Job Analysis development and further services upon request." Stortz stated that the rehabilitation goal was to, "Assist in the client's return to the workforce as soon as medically released to do so earning wages equal to or higher than those secured in her time of injury position."2 Stortz had prepared a JA and sent it to Conn. Thus, Stortz stated,
¶ 11 On April 18, 2018, Stortz emailed Conn's supervisor with questions about the changes the supervisor and Conn had made to the JA. Stortz notified Conn's supervisor that if either he or Conn had questions or concerns, they could call him.
¶ 12 Later that day, Stortz spoke with Conn. His note from the conversation states:
Staffed file with client. Client was confused as she thought the JA was to represent her TOI job versus her current modified job, etc. Made additional changes to JA. Client to see physician the beginning of May will then have FCE to determine her final abilities and limitations. Will get JA done and to physician.
¶ 13 On April 19, 2018, Stortz received the JA, which Conn and her supervisor had signed. Stortz then sent the JA to Justin Jacobsen, MD, who was one of Conn's treating physicians, with a letter stating:
¶ 14 On May 8, 2018, Stortz left a voicemail with Dr. Jacobsen's office asking for "status on JA."
¶ 15 On June 27, 2018, the adjuster at Intermountain Claims sent Stortz an email stating: Stortz replied as follows:
Sounds good - thanks Jay. Just talked to Ms. Conn on the phone. I sent the TOI JA over on 5/17 but had not heard back. Just [re-sent] it and I think they will send [it] right back. Once done - do you just want me to send it to you or on to the FCE?
¶ 16 On July 31, 2018, Stortz contacted Intermountain Claims. Stortz's note from the conversation states:
Staffed file with carrier - ok to close file as client is going to continue on in her modified position with her TOI employer.
¶ 17 On October 8, 2018, Stortz sent Intermountain Claims a Closure Report, again stating that he was retained to prepare a time-of-injury JA and to assist Conn in returning to the workforce.
¶ 18 Thereafter, Conn's employment with her time-of-injury employer ended.
¶ 19 On June 6, 2019, Conn filed a Petition for Hearing, wherein she alleges:
The respondent insurer contends that Conn is at MMI, and that the employer offered modified work. Conn contends that the time of injury employer forced her to exceed her claim related physical restrictions, so she was no longer able to continue working for the time of injury employer. Conn submits that she is entitled to resulting indemnity benefits, and that she is entitled to ongoing medical treatment benefits.
¶ 20 On June 27, 2019, AmTrust filed its Response to Petition for Hearing. AmTrust asserts that Conn is not entitled to any temporary total disability (TTD) benefits norpermanent partial disability (PPD) benefits because Dr. Jacobsen approved the JA for the modified position in which she was working:
Petitioner was medically approved to return to work in her time-of-injury position with modification, and to an alternate position with her time-of-injury employer by her treating surgeon, Dr. Jacobsen. Petitioner returned to work for her time-of-injury employer without an actual wage loss. Petitioner continued in that position until she quit, advising her employer she quit due to a heart condition.
¶ 21 On July 29, 2019, Stortz spoke with AmTrust's attorney. Stortz's note of that conversation states, "File consult with attorney - need to determine if client can continue to work in permanent alternative job with employer."
¶ 22 During discovery, Conn sent Request for Production No. 4 to AmTrust, asking it to produce "a copy of the Certified Rehabilitation Counselor's entire file." Although AmTrust had received emails, Progress Reports, and Closure reports from Regan and Stortz, AmTrust falsely responded, "Respondent has no responsive documents to this Request."3
¶ 23 In its supplemental answers to Conn's request for production, AmTrust produced documents from VMS's files. AmTrust asserts that it has now produced the complete files of VMS with one exception, that being an email AmTrust's attorney sent to Stortz on September 6, 2019. AmTrust claims that this email is protected by the attorney...
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