Heisler v. Hines Motor Co.

• Decision Date: 16 January 1997
• Docket Number: No. 95-485,95-485
• Citation: 937 P.2d 45,54 St.Rep. 345,282 Mont. 270
• Parties: Michael E. HEISLER, Petitioner and Appellant, v. HINES MOTOR COMPANY, Employer, State Compensation Insurance Fund, Insurer/Defendant and Respondent. . Heard
• Court: Montana Supreme Court

Page 45

937 P.2d 45

282 Mont. 270

Michael E. HEISLER, Petitioner and Appellant, v. HINES MOTOR COMPANY, Employer, State Compensation Insurance Fund, Insurer/Defendant and Respondent.

No. 95-485.

Supreme Court of Montana.

Heard Jan. 16, 1997.

Submitted Jan. 17, 1997.

Decided April 24, 1997.

Lawrence A. Anderson, Great Falls, for Appellant.

Norman Clyde Peterson, Assistant Attorney General, Agency Legal Services Bureau, Helena, for Respondent.

HUNT, Justice.

Appellant Michael E. Heisler (Heisler) appeals the decision of the Workers' Compensation Court denying his motion for summary judgment on the issue of whether he was constitutionally entitled to change his treating physician without the prior approval of the State Compensation Insurance Fund (State Fund). We reverse and remand.

ISSUE

The dispositive issue presented on appeal is whether the Workers' Compensation Court erred in denying Heisler's motion for summary judgment on the question of whether he was constitutionally entitled to change his treating physician without the prior approval of the State Fund.

FACTS

The facts in this case are not in dispute. On June 28, 1993, Heisler was injured in a work-related auto accident while employed by Hines Motor Supply Company of Great Falls. Hines Motor Supply Company was insured by the State Fund for purposes of workers' compensation. Immediately after the accident, Heisler sought treatment at the emergency room at Columbus Hospital. Heisler also went to a convenient care clinic on July 10, 12, and 14, 1993, for treatment of his injury. On July 12, 1993, Heisler submitted a claim for compensation to the State Fund in which he named a Dr. Richard A. Nelson as his treating physician.

The State Fund believed that Heisler's initial visits to a given doctor at the convenient care clinic constituted a choice of treating physician. The State Fund therefore contended that Heisler was attempting to change his existing choice of treating physician from the initial doctor to Dr. Nelson. Under ARM 24.29.1511, an injured claimant cannot change treating physicians without the prior approval of the State Fund. Since In the Workers' Compensation Court, and now on appeal, Heisler contended that he was statutorily entitled to full freedom to choose his own physician pursuant to § 33-22-111, MCA (1991). He further contended that this statute must take precedence over the conflicting administrative rule, thereby allowing him to change his treating physician without the State Fund's approval. For its part, the State Fund contended that the administrative rule was clear and unequivocal and, pursuant to its terms, the Fund had no duty to pay for treatment from an unauthorized treating physician.

Heisler had not obtained its prior approval, the State Fund refused to pay any of the charges Heisler incurred from his visits to Dr. Nelson. Heisler then instituted this suit to compel payment of Dr. Nelson's expenses.

Based on his interpretation of the apparent conflict of laws, Heisler moved for summary judgment. The Workers' Compensation Court denied the motion, concluding that § 33-22-111, MCA (1991), did not conflict with ARM 24.29.1511 and, further, did not apply in Heisler's case. Heisler then moved that a final judgment be entered on that basis. The Workers' Compensation Court granted the motion and entered a final judgment. Heisler appeals the denial of his motion for summary judgment.

STANDARD OF REVIEW

This Court's standard of review of a grant or denial of summary judgment is the same as that used by the trial court in ruling upon the motion for summary judgment. Malek v. Hankins (1996), 275 Mont. 97, 98, 911 P.2d 1127, 1128 (citing Motarie v. Northern Montana Joint Refuse Disposal Dist. (1995), 274 Mont. 239, 907 P.2d 154). Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.; Malek, 911 P.2d at 1128.

DISCUSSION

Before addressing the merits of the case, we must dispose of certain collateral matters.

First, the State Fund takes exception to Heisler's citation to excerpts from certain depositions in his brief. Relying on Johnson v. Killingsworth (1995), 271 Mont. 1, 894 P.2d 272, the State Fund contends that, in appealing this case, the parties must limit themselves to the "uncontested facts" contained in the pretrial order, which included no reference to the depositions in question. Johnson does not stand for the proposition advanced, however.

In Johnson, this Court declined to consider certain evidence offered on appeal which was not contained in the District Court record. In so doing, this Court stated that "[i]t is axiomatic that this Court will not consider evidence not contained in the record on appeal. Moreover, a party's reference to evidence does not incorporate that evidence into the record." Johnson, 894 P.2d at 273 (citations omitted). Johnson does not address whether this Court's consideration of the facts in a given case must be limited to the scope of the pretrial order; it merely states that this Court will not consider evidence which is not part of the record. In the case at bar, the depositions referenced are part of the record transmitted from the Workers' Compensation Court on appeal.

The State Fund presents no relevant authority to support its argument that this Court's review of the facts presented in the trial court must be limited to the uncontested facts in a pretrial order. A pretrial order serves to "prevent surprise, simplify the issues, and permit counsel to prepare their case for trial on the basis of the pretrial order." King v. Zimmerman (1994), 266 Mont. 54, 66, 878 P.2d 895, 903 (citing Zimmerman v. Robertson (1993), 259 Mont. 105, 111, 854 P.2d 338, 342). It lists such facts as are uncontested, and if a party admits to a fact by allowing its inclusion as uncontested in a pretrial order, the party will not be allowed to raise that particular factual issue on appeal. Whitehawk v. Clark (1989), 238 Mont. 14, 19, 776 P.2d 484, 487 (citing Morse v. Cremer (1982), 200 Mont. 71, 647 P.2d 358). The pretrial order, however, includes only such facts as are uncontested; it does not preclude a party from attempting to prove additional facts which remain in dispute. Nor does the pretrial order in and of itself limit the scope of this Court's review. On appeal, this Court may consider any evidence which is part of the record, Johnson, 894 P.2d at 273, even if it was not included in a pretrial order. Accordingly, if the depositions in question will facilitate our review we will consider them, just as we are free to consider the entirety of the record presented on appeal.

Second, the State Fund argues that this Court should decline to review the Workers' Compensation Court's decision in this case because the matter is moot. This suit was filed to recover certain expenses incurred by Dr. Nelson, which the State Fund refused to pay because Heisler had not obtained the Fund's prior approval before switching treating physicians. The State Fund notes that it has since authorized Dr. Nelson to be Heisler's treating physician and paid all the medical bills at issue. It therefore contends that the issue presented is moot.

As the State Fund correctly notes, an issue is moot when it no longer presents a justiciable controversy, due to the occurrence of a given event or the passage of time. Montana Tavern Association v. State By and Through Department of Revenue (1986), 224 Mont. 258, 262, 729 P.2d 1310, 1313-14 (citations omitted). However, an issue will not be considered moot if it is "capable of repetition, yet evading review." School Dist. No. 4 v. Board of Personnel Appeals (1985), 214 Mont. 361, 364, 692 P.2d 1261, 1263. In order to prove that a given situation is capable of repetition, yet evading review, a party must show:

(1) the challenged action was in its duration too short to be fully litigated prior to the cessation or expiration of the action; and

(2) there was a reasonable expectation the same complaining party would be subjected to the same action again.

School Dist. No. 4, 692 P.2d at 1263 (citing Sosna v. Iowa (1975), 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532).

We agree with the Workers' Compensation Court's conclusion that the issue raised in this case is not moot because the actions of the State Fund are capable of repetition, yet evading review. We note that the State Fund has not abandoned its contention that ARM 24.29.1511 gave it the absolute right to pre-approve a claimant's change of treating physician. Therefore, should Heisler again change his treating physician without the prior approval of the State Fund, the Fund could again refuse to pay the expenses incurred. The action complained of is capable of repetition.

Moreover, the dispute would probably continue to evade review, because the State Fund could avoid resolution of the underlying problem by simply paying the disputed expenses after a suit was instituted, just as it did in this case. Therefore, the State Fund's voluntary discontinuance of the action complained of was insufficient to render the issue moot. Because the action which prompted institution of this suit is capable of repetition, yet evading review, the State Fund's payment of the disputed charges will not serve to moot the issue presented. Having determined that the issue in the case is not moot, we will review the substantive question presented.

Did the Workers' Compensation Court err in denying Heisler's motion for summary judgment on the question of whether he was constitutionally entitled to change his treating physician without the prior approval of the State Fund?

This appeal stems from an apparent conflict of laws which existed as of the date of Heisler's injury. In this case, as in all workers' compensation cases, it is the law in effect on the date of the claimant's injury which must be applied. Kraft v. Flathead Valley Labor...