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Mosca v. American Home Assurance Co.2/13/2004
er the claimant's request for attorney fees and a penalty. Both must be awarded if the insurer's denial of benefits is unreasonable. Section 39-71-611, MCA (2001), provides in relevant part:
39-71-611. Costs and attorney fees payable on denial of claim or termination of benefits later found compensable -- barring of attorney fees under common fund and other doctrines. (1) The insurer shall pay reasonable costs and attorney fees as established by the workers' compensation court if:
(a) the insurer denies liability for a claim for compensation or terminates compensation benefits;
(b) the claim is later adjudged compensable by the workers' compensation court; and
(c) in the case of attorney fees, the workers' compensation court determines that the insurer's actions in denying liability or terminating benefits were unreasonable. [Emphasis added.]
Section 39-71-2907, MCA (2001), provides:
39-71-2907. Increase in award for unreasonable delay or refusal to pay. (1) The workers' compensation judge may increase by 20% the full amount of benefits due a claimant during the period of delay or refusal to pay, when:
(a) the insurer agrees to pay benefits but unreasonably delays or refuses to make the agreed-upon payments to the claimant; or
(b) prior or subsequent to the issuance of an order by the workers' compensation judge granting a claimant benefits, the insurer unreasonably delays or refuses to make the payments. [Emphasis added.]
In this case, I have found that the insurer's denial of benefits was unreasonable since liability was reasonably clear. The evidence clearly established that the claimant was engaged in heavy lifting: the insurer's own witness, Michael Downey, established the heavy nature of the job . Uncontradicted medical opinions established that the claimant's herniated disk was job related; the only question posed by those opinions was whether it arose on a single day as a result of a single incident, thus making it compensable under the WCA, or whether it arose over a longer period of time, making it compensable under the ODA. The notice defense was insubstantial: the employer admitted notice of a potential claim well within the thirty days required under the WCA, ยง 39-71-603, MCA (2001). The suggestion that claimant might have suffered an injury over the weekend of November 9-10, 2002, was unsubstantiated and contradicted by the employer (Henningsen).
I am at a loss to understand its continued denial of the claim. American's obligation to act reasonably did not end upon the filing of the petition. It did not end upon the swearing of the first witness. Its obligation to act reasonably was a continuous one and required that it consider new information whenever received. American ignored uncontradicted medical opinions; it ignored the evidence of its own witnesses; and it disregarded the concerns of this Court. Its denial of liability was unreasonable; its taking the matter through trial was irresponsible and reprehensible.
JUDGMENT
Claimant suffers from an occupational disease for which American Home Assurance Company is liable. American shall forthwith pay all of claimant's medical expenses related to his herniated disk and shall pay him temporary total disability benefits retroactively to November 11, 2002, and continuing until such time as he reaches maximum medical improvement. The Court retains jurisdiction to determine claimant's compensation rates and the amount of benefits due him in the event the parties are unable to agree on the amounts.
American shall pay claimant a twenty percent penalty on all benefits.
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