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Hams v. Liberty Northwest Insurance Corporation2/10/2000
curtailing his caffeine and nicotine addictions. Second, claimant has not complied with his treating physician's recommendation to cease drinking coffee and other caffeinated beverages and to stop smoking. These findings are important. Where treatment which might improve claimant's condition is available, it cannot be delayed or ignored so as to maintain claimant in a perpetual state of less than maximum healing, and where the treating physician recommends reasonable treatment, including elimination of particular vices, the claimant must follow the recommendations unless incapable of doing so. As applied to this case, those principles mean that prompt, reasonable steps must be taken to implement the claimant's treatment plan. The failure to do so may result in a future finding that claimant has indeed reached MMI if it is not reasonable to expect that further medical treatment will be implemented.
The claimant's requests for attorney fees and a penalty are governed by sections 39-71-611 and -2907, MCA (1997). Those sections require a finding that the insurer has acted unreasonably before fees or penalty may be imposed. In this case, I have found that the insurer's termination of benefits was based on legitimate medical opinion, and therefore reasonable. Claimant is entitled to neither attorney fees nor a penalty. He is entitled to his costs.
JUDGMENT
1. Liberty shall reinstate claimant's temporary total disability benefits retroactive to the date it discontinued those benefits.
2. Claimant is entitled to costs pursuant to section 39-71-611, MCA. The parties shall follow the procedures set forth in ARM 24.5.342 and 24.5.343.
3. Claimant is not entitled to attorney fees or a penalty.
4. This JUDGMENT is certified as final for purposes of appeal pursuant to ARM 24.5.348.
5. Any party to this dispute may have 20 days in which to request a rehearing from these FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT.
DATED in Helena, Montana, this 10th day of February, 2000.
(SEAL)
c: Mr. Kenneth S. Thomas Mr. Larry W. Jones Submitted: December 29, 1999
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