Work Comp News

Workers’ Compensation Court Decision:

Malcomson v Liberty Northwest; 2013 MTWCC 21: Malcomson withdrew her consent allowing Respondent Liberty Northwest to have ex parte (private) communications with her medical providers. She then signed a release allowing Respondent to obtain relevant medical information, but requiring Respondent to give her the opportunity to participate in any communications. Respondent terminated Malcomson’s benefits, arguing that it is entitled to pursue ex parte (private) communications with an injured worker’s medical providers pursuant to §§ 39-71-604(3) and 50-16-527(5), MCA. Malcomson petitioned the Workers’ Compensation Court, arguing that these statutes unconstitutionally violate her right of privacy under Article II, Section 10, of the Montana Constitution, and her right to due process under Article II, Section 17, of the Montana Constitution and under the Fifth and Fourteenth Amendments to the United States Constitution.

The court held as applied to the facts of this case, § 39-71-604(3), MCA (2007), unconstitutionally violates Malcomson’s right of privacy under Article II, Section 10 of the Montana Constitution. Malcomson is entitled to reinstatement of her medical benefits, which Respondent terminated after she refused to allow Respondent to communicate ex parte (private) with her healthcare providers.

Supreme Court Affirmed:

We therefore conclude that the unconstitutionality of § 39-71-604(3), MCA (2003), under Article II, Section 10 of the Montana Constitution has been established beyond a reasonable doubt and we affirm the conclusion of the WCC to that effect.

We therefore conclude that the statute is facially unconstitutional because it would impose the same violation of privacy interests on every injured worker to
whom it was applied.

Finally, we concur with the WCC’s conclusion that insurers have a legitimate interest in engaging in ex parte contact with healthcare providers for the sole purpose of facilitating the administrative aspects of the claim handling procedure, such as scheduling appointments and requesting medical records. We agree with the WCC that a release crafted to authorize this type of limited ex parte contact would not violate a claimant’s right of privacy.

CONCLUSION
¶34 For the foregoing reasons, we conclude the WCC did not err in ruling that
§ 39-71-604(3), MCA, “is unconstitutional because it violates Macolmson’s constitutional right of privacy.” We further conclude the WCC did not err in concluding that a narrowly crafted release authorizing insurers to have ex parte contact with healthcare providers solely for administrative purposes would not violate a claimant’s right of privacy.

DA 13-0610 IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 242