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Hiett v. Montana Schools Group Insurance Authority9/6/2001
SGIA represented, at least implicitly, that it would pay for prescription drugs for claimant's lifetime irrespective of her employment situation, and that the next four elements are also met, the sixth element -- detriment to the claimant -- is lacking. To show detriment, claimant must prove that she is worse off because of the alleged misrepresentation. She has failed to persuade me that is the case. While she might have refused to enter into the settlement had she been aware MSGIA would not pay for prescription drugs, what would she have gained by her refusal? She could not have insisted on payment for prescription drugs unless she satisfied the terms of section 39-71-704, MCA (1995). She did not, and does not, contend she was entitled to PTD benefits. Except for the dispute over the impairment award, she got exactly what she demanded. (Ex. 1 at 200-216.) As to the disputed impairment award, claimant has failed to present evidence showing that she could have obtained a greater impairment award than obtained through the settlement. Since element (6) is lacking, MSGIA is not estopped from denying payment for claimant's prescription drugs.
IV. Summary
Claimant has failed to establish her entitlement to prescription drugs. If in the future she secures employment and satisfies the conditions of section 39-71-704(1)(b) or (1)(g), MCA (1995), at that time she may become entitled to payment for her prescription medications.
V. Penalty and Attorney Fees
Although claimant is not entitled to further prescription benefits until she meets the statutory criteria for those benefits, she is entitled to a penalty with respect to the benefits MSGIA agreed to pay but failed to pay within a reasonable time. Section 39-71-2907, MCA (1995), provides:
39-71-2907. Increase in award for unreasonable delay or refusal to pay.
The workers' compensation judge may increase by 20% the full amount of benefits due a claimant during the period of delay or refusal to pay, when:
(a) the insurer agrees to pay benefits but unreasonably delays or refuses to make the agreed-upon payments to the claimant; or
(b) prior or subsequent to the issuance of an order by the workers' compensation judge granting a claimant benefits, the insurer unreasonably delays or refuses to make the payments. [Emphasis added.]
In October 1999, MSGIA agreed to pay for prescription drugs up to that time, however, it failed to do so until March 2000. It also failed for several months to pay all prescription bills for the period claimant was working in 2000 despite its agreement to do so. Its delay in making the agreed payments was unreasonable and its excuses unavailing. It had a duty to insure that the bills were paid within a reasonable time. Claimant is therefore entitled to a 20% penalty with respect to the amounts due through October 1999 and amounts due for the period in 2000 during which claimant was working and which were unpaid as of December 31, 2000. If the parties cannot compute the amounts, the Court will hold a further hearing to determine what is due.
Claimant is not entitled to attorney fees under either sections 39-71-611 or -612, MCA (1995), since both sections require that the Court award claimant benefits as a prerequisite to attorney fees.
JUDGMENT
Claimant is not entitled to payment for prescription drugs at present, although she may become entitled to such payment if she finds employment and satisfies the conditions of section 39-71-704(1)(b) or (1)(g), MCA (1995).
Claimant is entitled to a penalty with respect to the late payments made by MSGIA with respect to prescrip
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