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Oens v. Employee Benefits Insurance Company6/5/2003
nd his counsel knew at various times. Those inferences were made against the background of a full record developed through testimony and exhibits.
In this case, the respondent asks the Court to conclude, without trial, that claimant had sufficient facts well before his recent treatment with Dr. Burton to believe the parties had been mistaken at the time of settlement regarding the extent of his neck injury . In its reply to claimant's opposition, respondent draws the Court's attention to medical records and letters over the years. Those records report claimant's statements to the effect that his neck problems began with the 1983 injury. Respondent suggests that this Court must interpret those statements as demonstrating claimant's knowledge of a mistake about this or at least putting him on notice of such mistake. On the other hand, claimant points out that his neck surgery prior to the settlement was at the C5-6 level and that Dr. Burton's opinion in 2001 was the first medical evidence attributing his neck problems at other levels to his 1983 injury. Claimant also notes that following the settlement the insurer refused medical coverage for his neck (Response to Insurer's Motion for Summary Judgment at 2), a contention not denied by the respondent.
This is not a dispute that may be resolved on summary judgment. It is not enough that claimant suspected a relationship between subsequent neck problems and his original injury . All the suspicion and belief in the world would not have gotten him through the courtroom doors absent some supporting medical opinion. The facts as presented at this juncture are insufficient for me to conclude on an uncontroverted basis that the claimant was aware of a medical opinion pointing to a connection between his post-settlement neck problems and his original industrial accident or that he should have more diligently pursued such opinion.
ORDER
The motion for summary judgment is denied.
Dated in Helena, Montana, this 5th day of June, 2003.
Mike McCarter JUDGE
Submitted: April 15, 2003
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