Robinson v. State Comp. Mut. Ins. Fund

• Decision Date: 23 October 2018
• Docket Number: DA 17-0603
• Citation: 2018 MT 259,393 Mont. 178,430 P.3d 69
• Parties: Janie L. ROBINSON, Plaintiff and Appellant, v. STATE COMPENSATION MUTUAL INSURANCE FUND, Defendant and Appellee.
• Court: Montana Supreme Court

393 Mont. 178

430 P.3d 69

2018 MT 259

Janie L. ROBINSON, Plaintiff and Appellant,

v.STATE COMPENSATION MUTUAL INSURANCE FUND, Defendant and Appellee.

DA 17-0603

Supreme Court of Montana.

Submitted on Briefs: September 5, 2018

Decided: October 23, 2018

Rehearing Denied: November 27, 2018

For Appellant: Lawrence A. Anderson, Attorney at Law, P.C., Great Falls, Montana.

For Appellee: Maxon R. Davis, Davis, Hatley, Haffeman & Tighe, P.C. Great Falls, Montana, Rebekah J. French, Risk Management & Tort Defense Division, Helena, Montana.

Justice Jim Rice delivered the Opinion of the Court.

¶ 1 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?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 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."

¶ 3 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.

¶ 4 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.

¶ 5 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.

¶ 6 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.

¶ 7 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 future."

¶ 8 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, State Fund declared Robinson permanently totally disabled based upon the cumulative effect of her injuries for which State Fund had accepted liability.

¶ 9 Beginning in 2004, Robinson filed successive legal challenges in the Workers’ Compensation Court (WCC) to the managed care provisions of the Workers’ Compensation Act, and the medical utilization rules governing workers’ compensation claims promulgated by the Department of Labor and Industry, as unconstitutional. Ultimately, these actions were dismissed by the WCC, first, on grounds that Robinson lacked standing, because her claims against State Fund did not arise under the challenged provisions. And secondly, that the WCC lacked jurisdiction over some of Robinson’s claims because they did not arise in the context of a dispute regarding benefits.

¶ 10 Robinson originally filed this proceeding before the Lewis and Clark County District Court in 2005, ultimately filing her Second Amended Complaint in December 2015. Robinson alleged that State Fund’s handling of her workers’ compensation claims violated her constitutional rights to privacy, substantive due process, and freedom from unreasonable searches, by reason of obtaining a second IME without showing good cause; that State Fund committed a constitutional tort against her; and that she was entitled to attorneys’ fees under the private attorney general doctrine because the government "fail[ed] to properly enforce" significant constitutional protections.

¶ 11 The parties filed cross motions for summary judgment, and the District Court granted State Fund’s motion, while denying Robinson’s motion and dismissing her complaint with prejudice. Robinson appeals.

STANDARD OF REVIEW

¶ 12 We review a district court’s grant or denial of summary judgment de novo, applying the same criteria used by the district court under M. R. Civ. P. 56. Pilgeram v. Greenpoint Mortg. Funding, Inc. , 2013 MT 354, ¶ 9, 373 Mont. 1, 313 P.3d 839. "Summary judgment is appropriate only when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law." Town & Country Foods, Inc. v. City of Bozeman , 2009 MT 72, ¶ 12, 349 Mont. 453, 203 P.3d 1283.

¶ 13 Our review of constitutional questions is plenary. Williams v. Bd. of County Comm’rs , 2013 MT 243, ¶ 23, 371 Mont. 356, 308 P.3d 88. "Legislative enactments are presumed to be constitutional, and the party challenging the provision has the burden of proving beyond a reasonable doubt that it is unconstitutional." Williams , ¶ 23. "If there is any doubt as to constitutionality, the resolution must be made in favor of the statute." Walters v. Flathead Concrete Prods ., 2011 MT 45, ¶ 32, 359 Mont. 346, 249 P.3d 913. A statute’s constitutionality is a question of law, which we review for correctness. Walters , ¶ 9.

DISCUSSION

¶ 14 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?

¶ 15 Broadly stated, the issue raised here is whether § 39-71-605, MCA, violates the Montana Constitution. Robinson argues the provision permits State Fund to act in contravention to the rights of privacy, substantive due process, and against unreasonable searches embodied in Article II, Sections 3, 10, and 17 of the Montana Constitution.

¶ 16 Section 39-71-605(1), MCA, provides, in pertinent part:

(a) Whenever in case of injury the right to compensation under this chapter would exist in favor of any employee, the employee shall, upon the written request of the insurer, submit from time to time to examination by a physician, psychologist, or panel that must be provided and paid for by the insurer and shall likewise submit to examination from time to time by any physician, psychologist, or panel selected by the department or as ordered by the workers’ compensation judge.

(b) The request or order for an examination must fix a time and place for the examination, with regard for the

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