Herman v. Mont. Contractor Comp. Fund
| Citation | 2020 MTWCC 16 |
| Decision Date | 02 September 2020 |
| Docket Number | WCC No. 2018-4426 |
| Parties | JEFFREY HERMAN, JR. Petitioner v. MONTANA CONTRACTOR COMPENSATION FUND Respondent/Insurer. |
| Court | Montana Workers Compensation Court |
Summary: Petitioner filed his Petition for Trial and for Declaratory Judgment seeking, inter alia, a ruling designating a particular physician as his treating physician, a ruling that Respondent is liable for medical benefits and for his attorney's Lockhart fees, and a declaration that § 39-71-1101(2), MCA — which allows an insurer to designate a physician as an injured worker's treating physician — is unconstitutional. Within days, Respondent designated the particular physician as Petitioner's treating physician and conceded that it was liable for Petitioner's medical benefits and his attorney's Lockhart fees. Respondent moved for partial summary judgment, arguing that this Court no longer has subject matter jurisdiction over these claims under § 39-71-2905(1), MCA, and Thompson v. State of Montana, because there is no longer a dispute concerning benefits. In the alternative, Respondent argues that this Court does not have jurisdiction over these claims because they are moot. Petitioner cross-moved for partial summary judgment, arguing that this Court has subject matter jurisdiction over his claim that § 39-71-1101(2), MCA, is unconstitutional because, after Thompson, the Legislature made this Court a court of record. Petitioner asserts that, as a court of record, this Court has jurisdiction to issue declaratory judgments absent a dispute concerning benefits under the Uniform Declaratory Judgments Act. Petitioner also argues that these claims are not moot because Respondent's conduct is capable of repetition yet evading review and because Respondent's "voluntary cessation" does not render the claims moot. Petitioner also asserts that he is entitled to summary judgment on his penalty claim under § 39-71-2907, MCA, because Respondent unreasonably delayed payment of benefits, and on his claim that he is entitled to attorney fees under the private attorney general doctrine. In a separate partial summary judgment motion, Respondent argues that it is entitled to summary judgment on Petitioner's claim for attorney fees under § 39-71-611, MCA, because it has conceded liability for the benefits at issue and, therefore, this Court will not adjudicate the dispute over whether it is liable for these benefits. Petitioner asserts that he can obtain attorney fees under §§ 39-71-611 and -612, MCA, because Respondent has incorrectly and unreasonably calculated the amounts of medical benefits due under the fee schedules and has therefore not paid the full amount of benefits owing.
Held: Respondent's motion for partial summary judgment on Petitioner's claims to designate the particular physician as his treating physician, to rule that Respondent is liable for medical benefits and Lockhart attorney fees, and to declare § 39-71-1101(2), MCA, unconstitutional is granted because this Court no longer has subject matter jurisdiction over these claims. This Court is a court of limited jurisdiction which only has "such power as is expressly conferred by statute." Under § 39-71-2905(1), MCA, and Thompson, this Court's jurisdiction is limited to "dispute[s] concerning any benefits" under the Workers' Compensation Act. A dispute concerning Respondent's liability for benefits no longer exists because Respondent has designated the particular physician as Petitioner's treating physician and conceded that it is liable for the medical benefits at issue and for Lockhart attorney fees. This Court does not have subject matter jurisdiction to issue a declaratory judgment in the absence of a dispute concerning benefits because the specific grant of jurisdiction in the Workers' Compensation Act controls over a general grant of jurisdiction in the Uniform Declaratory Judgments Act. Because this Court does not currently have subject matter jurisdiction over Petitioner's constitutional challenge to § 39-71-1101(2), MCA, this Court does not address his challenge nor his claim for attorney fees under the private attorney general doctrine. This Court does not reach Petitioner's justiciability arguments because this Court must first have subject matter jurisdiction before it can rule on justiciability. Respondent's motion for partial summary judgment on the issue of claimant's entitlement to attorney fees is granted because Respondent has conceded its liability for the benefits at issue and this Court cannot award attorney fees under § 39-71-611, MCA, unless it adjudicates a dispute over an insurer's liability for benefits and finds that the insurer's denial of liability was unreasonable. This Court does not address Petitioner's argument under § 39-71-612, MCA, because Petitioner did not make a claim under this statute. Petitioner's motion for partial summary judgment on his penalty claim is denied because there are issues of fact as to whether Respondent's initial denials of liability for medical benefits were reasonable.
¶ 1 Petitioner Jeffrey Herman, Jr. filed a Petition for Trial and for Declaratory Judgment seeking: (1) an order directing Respondent Montana Contractor Compensation Fund (MCCF) to designate Aaron Flanagan, MD, as his treating physician; (2) a ruling that MCCF is liable for medical benefits for Dr. Flanagan's services and treatments; (3) a ruling that MCCF is liable for his attorney fees on the medical benefits under Lockhart v. New Hampshire Ins. Co.;1 (4) a judgment declaring that § 39-71-1101(2), MCA — which provides, in relevant part, that "after acceptance of liability by an insurer, the insurer may designate or approve a treating physician" — is unconstitutional and a ruling that he is entitled to his attorney fees for prevailing on this claim under the private attorney general doctrine; (5) a ruling that MCCF is liable for his attorney fees under § 39-71-611, MCA; and (6) a ruling that MCCF is liable for a penalty under § 39-71-2907, MCA.
¶ 2 By two motions, MCCF moves for partial summary judgment. In its first motion, MCCF asserts that this Court no longer has subject matter jurisdiction to order it to designate Dr. Flanagan as Herman's treating physician, to rule that it is liable for Herman's medical benefits and for Herman's attorney fees under Lockhart, or to declare § 39-71-1101(2), MCA, unconstitutional. A few days after Herman filed his Petition for Trial and for Declaratory Judgment, MCCF designated Dr. Flanagan as Herman's treating physician and conceded that it was liable for medical benefits for the medical services that Dr. Flanagan has prescribed and for Lockhart attorney fees. Thus, MCCF asserts that this Court does not currently have subject matter jurisdiction over these claims under § 39-71-2905(1), MCA, and Thompson v. State of Montana,2 because there is no longer a dispute concerning benefits. In the alternative, MCCF asserts that this Court does not have jurisdiction over these claims because they are now moot. In its second motion, MCCF argues that it is entitled to summary judgment on Herman's claim for attorney fees under § 39-71-611, MCA, because it has conceded that it is liable for the benefits and, therefore, this Court will not adjudicate the dispute.3
¶ 3 Herman opposes MCCF's motions for partial summary judgment and cross-moves for partial summary judgment. Herman argues that his claims are justiciable because MCCF's conduct is capable of repetition yet evading review and because MCCF's "voluntary cessation" of its refusal to designate Dr. Flanagan as his treating physician and pay medical benefits and Lockhart fees does not render these issues moot. Hermanargues that this Court has subject matter jurisdiction to decide whether § 39-71-1101(2), MCA, is unconstitutional because this Court is now a court of record and can issue declaratory judgments under the Uniform Declaratory Judgments Act in absence of a dispute concerning benefits. Herman also argues that he can recover attorney fees under the Workers' Compensation Act (WCA) if this Court finds that MCCF's conduct was unreasonable and under the private attorney general doctrine if this Court rules that § 39-71-1101(2), MCA, is unconstitutional. Herman also asserts that he is entitled to summary judgment on his penalty claim.
¶ 4 As explained below, this Court grants MCCF's motions for partial summary judgment and denies Herman's cross-motion. Because this Court no longer has subject matter jurisdiction over Herman's claim for a declaratory judgment that § 39-71-1101(2), MCA, is unconstitutional, this Court does not address the merits of this claim, nor Herman's claim that he is entitled to attorney fees for prevailing on this claim under the private attorney general doctrine. The Clerk of this Court will issue a new Scheduling Order setting this case for trial on Herman's remaining claim.
¶ 5 On June 23, 2016, Herman was injured when a trench box landed on his left foot and ankle.
¶ 6 MCCF accepted liability for Herman's claim and began paying benefits.
¶ 7 On March 9, 2017,4 Herman underwent an independent medical examination (IME) with Mark Rotar, MD, and Robert J. Vincent, MD. The panel opined that Herman was "not . . . a candidate for any surgery of any kind" and recommended "referral to a qualified podiatrist as for fitting of appropriate orthotics."
¶ 8 On April 25, 2017, Herman began treating with Daniel G. Hodson, DPM. Dr. Hodson indicated that "surgery was . . . an option to repair [his] torn ligament and/or tendon."5
¶ 9 On July 19, 2017, Mel Pozder, Claims Examiner for MCCF, wrote a letter to the IME panel asking, inter alia: "[I]s surgery warranted for [Herman's] chronic ATFL [anterior talofibular ligament] tear?"6
¶ 10 On August 7, 2017, the IME panel responded that "in the absence of proven...
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