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Whitlock v. Fremont Industrial Indemnity Company2/26/2002
would need medical care. Until November 7, 2000, the September 1st incident was trivial and inconsequential. Claimant reported the September 1st injury within 30 days after November 7th, thus her report was timely under section 39-71-603, MCA (1999).
Since claimant had not reached MMI with respect to the September 1st injury when she suffered exacerbations on October 31 and November 25, 2000, Fremont is liable for those subsequent exacerbations. See Belton v. Carlson Transport, 202 Mont. 384, 658 P.2d 405 (1983) Caekaert v. State Comp. Mut. Ins. Fund 268 Mont. 105, 115, 885 P.2d 495, 500-01 (1994); Liberty Northwest Ins. Corp. v. State Compensation Ins. Fund, 2001 MTWCC 56. Thus, it is liable for medical treatment, including surgery, for her cervical herniated disk and for her disability.
Claimant's requests for attorney fees and a penalty require proof that the insurer acted unreasonably when it denied her claims for compensation. ยงยง 39-71-611 and -2907, MCA (1999). I have found that the insurer's denial of her claims was not unreasonable, therefore she is not entitled to either attorney fees or the penalty. She is, however, entitled to her costs.
JUDGMENT
Fremont is liable for claimant's cervical herniated disk injury and for medical treatment and disability resulting from the herniated disk. The parties have not asked the Court to determine the amounts due in medical and compensation benefits. If the parties are unable to agree on those amounts, they may request the Court to do so. The Court maintains continuing jurisdiction solely for that purpose.
The claimant is not entitled to attorney fees or a penalty.
The claimant is entitled to her costs in an amount to be determined. She shall file her memorandum of costs in accordance with the Court's rules.
This JUDGMENT is certified as final for purposes of appeal.
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 26th day of February, 2002.
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