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American Home Assurance Co. v. Bry2/27/2004
, which is relevant to the claim. § 39-71-604(1), MCA (1999), ("If a worker is entitled to benefits under this chapter, the worker shall file with the insurer all reasonable information needed by the insurer to determine compensability.") Dion v. Nationwide Mutual Ins. Co., 185 F.R.D. 288, 294 (Dist. Mont. 1998) (No. CV-95-122-GF.) ("A privilege may also be impliedly waived where a party makes assertions in the litigation or 'asserts a claim that in fairness requires examination of the protected communications.'" ).
Therefore, if Ms. Bry desires to pursue her claim she must provide full and informative responses to discovery which is reasonably calculated to obtain information that may lead to admissible evidence. "It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Rule 26(b)(1), Mont.R.Civ.P.
I have reviewed the specific information sought by the insurer in its January 26, 2004 letter. I find the requested information is "reasonably calculated to lead to the discovery of admissible evidence."
The list of medical providers requested by the insurer may identify medical providers who have treated the claimant for conditions wholly unrelated to her claim in this case, however, identification of providers may also lead to discovery of admissible evidence. For example, if the medical providers who have treated the claimant include chiropractors, orthopedic surgeons, and physiatrists, the very nature of those providers' specialties suggest the possibility that the claimant may have been treated for back problems. Even though an insurer is responsible for aggravations of pre-existing conditions, it is not responsible for non-material aggravations. See e.g., Caekart v. State Compensation Ins. Fund, 268 Mont. 105, 885 P.2d 495 (1994); Watkins v. State Compensation Ins. Fund, 2002 MTWCC 11. The claimant's prior back problems are therefore potentially relevant. The insurer is not presently seeking medical records, so I do not need to address whether there is a sufficient basis for compelling disclosure of those records.
Identification of prior workers' compensation claims may also lead to admissible evidence. If those claims involve back injuries, those injuries may raise issues concerning which insurer is liable for the claimant's current back condition. See Belton v. Carlson Transport, 202 Mont. 384, 658 P.2d 405 (1983).
Identification of the claimant's prior employers provides background information which might lead to further information concerning the claimant's history of back injuries or disease. Ultimately, the information may also be relevant to any claim for permanent disability benefits.
Finally, a list of other accidents and injuries the claimant has suffered is plainly calculated to identify information which may lead to further information concerning prior back injuries. The relevancy of those back injuries is addressed in paragraph 22.
Accordingly, if the claimant intends to pursue her claim for compensation, she must furnish the information requested by the insurer in its January 26, 2004 letter, and do so within twenty days of this Order.
ORDER
The claimant shall notify the Court and the petitioner's attorney, in writing, no later than March 10, 2004, whether she wishes to pursue her claim for compensation in this proceeding. If she does not wish to do so, the petition in this case shall be dismissed.
If the claimant wishes to pursue her claim in this proceeding, she shall respond, in writing and under oath, to the
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