Great Falls legislator Ed Buttrey is leading this year's assault on injured workers in the Montana Legislature. The legislative website identifies six bill requests by Senator Buttrey. Currently, there are drafts available for review for four while two remain as placeholders.
The available text from four of the bills demonstrates that Senator Buttrey has little regard for the Montana Constitution and even less regard for injured workers. While the system is intended to provide protection for employers as well, it should not do so at the expense of constitutional rights. His bill requests range from violating medical privacy with vague language regarding a release of information to pretending that a treating physician's opinion should not carry more weight. His subrogation bill will threaten the recovery of injured workers with third party personal injury claims. Finally, his “fraud” bill will basically allow insurers to take a mulligan on liability decisions.
One by one:
LC1263 – This bill repeals §39-71-414, MCA and eliminates subrogation. So how does this hurt the injured worker? Without the subrogation provision on the books, arguably the collateral source doctrine can be applied to reduce third party recoveries by injured workers in tort claims. This helps neither the injured workers nor the work comp insurer and certainly hurts the injured worker.
LC1264 – This bill eliminates the evidentiary presumption given to the opinion of the treating physician. Long standing jurisprudence acknowledges that valuable and unique relationship between patient and doctor and recognizes that when weighing evidence. Insurers already use and abuse the “independent medical examination” with impunity. Bringing doctors in from out of state to “tour” the state and create conflicts in claims in hopes of leveraging claimants is commonplace. One former Bozeman physician who now resides in Boise routinely visits Montana to second guess the physician in nearly every case he touches. These doctors toss opinions out like peanut shells without fear of violating medical standards because they do not have a “treating” relationship. Buttrey's attempt to put such hired guns on the same level of a treating physician is misguided.
LC1266 – This bill illustrates Senator Buttrey's disregard for the constitutional right to privacy. The bill bootstraps language to §39-71-604, MCA and provides a tool for terminating benefits for the failure to sign a release. It adds the following language to §39-71-609, MCA:
(2) (a) If a claimant refuses or fails to sign a medical release or authorization that complies with Montana law, an insurer may:
(i) deny liability if liability has not been accepted; or
(ii) terminate payment of all compensation benefits if liability has been accepted.
(b) The insurer is not under a duty to investigate the claimant's claim for compensation benefits after the denial or termination in subsection (2)(a).
(c) If a claimant signs a medical release or authorization that complies with Montana law after refusing or failing as specified in subsection (2)(a), the insurer shall:
(i) adjust the claimant's claim pursuant to Montana law; and
(ii) pay compensation benefits that are appropriate but were denied or terminated because the claimant refused or failed to sign a medical release or authorization.
The problem this presents is that §39-71-604, MCA has already been found constitutional defective in the Malcomson opinion of the Montana Supreme Court. This statute only encourages the abuse of the process by insurers – many of which still use this release playing upon the ignorance of injured workers. Adjusters from Sedgwick routinely and knowingly violate the rights of injured workers by providing for ex parte contact without informing the claimant of the constitutional right to privacy.
LC 1267 – This bill gives the insurer a mulligan on its liability determination. While it is couched in the context of “fraud” terms, it contains language that provides the insurer a “do over” for something that is decidedly not fraud:
(2) After accepting a claim, an insurer may terminate payment of compensation benefits if:
(a) the claim was accepted because of fraud or mutual mistake of a material fact; or
(b) the insurer receives additional information that creates a genuine doubt from a medical or legal point of view that the insurer was liable for the compensation benefits.
Section (2)(b) is decidedly not fraud. It means that every liability determination can be revisited as the cost rises. It invites second guessing by the hired guns Senator Buttrey has armed with LC 1264.
It's notable that Senator Buttrey was the first candidate to declare himself officially in the race replace Representative Ryan Zinke as part of Montana's national delegation.
Plain and simple, these four bills are very damaging to Montana's injured workers.