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Lund v. St. Paul Fire & Marine Insurance Co.2/11/2002
d in our letter of January 14 regarding continued temporary total disability benefits, as well as mileage incurred by Kathy for medical treatment, can be very easily resolved. We would ask that TCI or its insurer, St. Paul, make a determination as quickly as possible.
We look forward to hearing from you. Thank you. (Ex. G-1 to Respondent's Brief in Opposition to Request for Production of Adjuster's Notes.)
h On February 4, 1999, Cotter again wrote to Crews. He noted that she continued to deny travel reimbursement. He requested that claimant be referred to a neurologist in Columbus, near her home, to avoid the expense of travel. Crews wrote back in handwriting on the bottom of that letter: "Sorry, there's not a neurologist in Columbus." (Ex. G-2 to Respondent's Brief in Opposition to Request for Production of Adjuster's Notes.)
i On July 6, 1999, Cathy Anderson (Anderson), then the "adjuster in charge" of the case, wrote to Cotter, responding to a letter of his dated June 9, 1999. She denied "routinely contacting" claimant's physician without notifying Cotter. She indicated the doctor had placed claimant at maximum medical improvement and had recommended an impairment rating and functional capacity evaluation. Anderson stated she would inform Cotter when appointments for these evaluations were made. She also wrote:
You requested copies of all notes, memoranda and telephone reports that I have generated regarding Ms. Burnside's claim. This information is my client's work product, and I am not free to release it to you. However, I have attached a copy of the payment records for your information. (Ex. H to Respondent's Brief in Opposition to Request for Production of Adjuster's Notes.)
j On February 15, 2001, Anderson wrote to attorney Timothy B. Strauch (Strauch), who had by then associated with Cotter in representing claimant. She refused to authorize an exercise program for claimant and referenced an evaluation of claimant by Dr. Scott Ross. (Ex. I-1 to Respondent's Brief in Opposition to Request for Production of Adjuster's Notes.)
k On June 7, 2001, Strauch wrote to Anderson, noting that in terminating benefits and denying medical treatment on the basis of Dr. Ross's report, the insurer had ignored the opinion of treating medical providers. Strauch also disagreed with Dr. Ross's impairment evaluation. He made "written demand for payment of permanent partial disability benefits retroactive to August 8, 1999, as provided by statute, together with payment of all medical expenses incurred since that date." (Ex. I-2 to Respondent's Brief in Opposition to Request for Production of Adjuster's Notes.)
The insurer contends these contacts evidence disputes and the threat of litigation, making adjustment of the case following the initial contact by Cotter as in "anticipation of litigation." The letters exchanged during 1998 and early 1999 do not evidence a dispute so much as a request that the insurer (and employer) give attention to the matter, make determinations as to whether benefits are due, and pay benefits. While Cotter did assert a right to payment, the letters during 1998 and early 1999 do not reflect a final determination by the insurer or any statement that litigation was inevitable or even likely. Indeed, Cotter's letter of January 22, 1999, suggests expectation that matters would be "very easily resolved." (Ex. G-1 to Respondent's Brief in Opposition to Request for Production of Adjuster's Notes.)There is no indication that positions were entrenched and litigation imminent. The insurer's position that all entries following initial contact from Cotter must be deemed work product is without merit.
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