                                                                                          December 16 2014


                                           DA 13-0788
                                                                                          Case Number: DA 13-0788

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2014 MT 328



RANDALL SIMMS,

              Plaintiff and Appellant,

         v.

MICHAEL SCHABACKER, M.D.,

              Defendant and Appellee.



APPEAL FROM:            District Court of the Thirteenth Judicial District,
                        In and For the County of Yellowstone, Cause No. DV 10-1313
                        Honorable Russell C. Fagg, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Gene R. Jarussi, Bishop & Heenan Law Firm, Billings, Montana

                        Michael G. Eiselein, Eiselein & Grubbs, PLLP, Billings, Montana

                For Appellee:

                        Lee Bruner; Mark A. Thieszen, Poore, Roth & Robinson, P.C.,
                        Butte, Montana



                                                    Submitted on Briefs: September 24, 2014
                                                               Decided: December 16, 2014


Filed:

                        __________________________________________
                                            Clerk
Justice Patricia Cotter delivered the Opinion of the Court.

¶1     Randall Simms appeals the Thirteenth Judicial District Court’s grant of summary

judgment to Dr. Michael Schabacker. Schabacker was Simms’ workers’ compensation

doctor from 2004 through 2007 following Simms’ 1999 work-related accident. Simms

sued Schabacker and St. Vincent Healthcare, Schabacker’s employer, alleging

Schabacker had disclosed private, confidential healthcare information about him to a law

enforcement officer without Simms’ permission.         The District Court concluded that

Schabacker’s letter was authorized by applicable Montana law and that Schabacker did

not knowingly assist law enforcement.       The court granted Schabacker’s motion for

summary judgment. Simms appeals. We affirm.

                                          ISSUE

¶2     A restatement of the issue on appeal is whether the District Court erred in

concluding that Schabacker did not knowingly assist law enforcement and that Montana

law authorized Schabacker’s letter to Montana State Fund addressing Simms’ medical

condition.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3     Randall Simms has been before this Court on two previous occasions relating to

his 1999 workers’ compensation injury—Simms v. State Comp. Ins. Fund, 2005 MT 175,

327 Mont. 511, 116 P.3d 773 (Simms I) and Mont. State Fund v. Simms, 2012 MT 22,

364 Mont. 14, 270 P.3d 64 (Simms II). Detailed background facts are included in both

Simms I and Simms II. Here, we outline only those facts necessary to place this appeal in

context.

                                             2
¶4     In the previous cases it was established that Simms was injured while on the job in

1999. The State Fund accepted liability for his injury claim. Simms subsequently

became totally disabled and has been receiving total disability benefits since 2006.

Schabacker has treated Simms since October 2004, and his testimony before the

Workers’ Compensation Court led to the settlement which provided Simms with

permanent total disability and domiciliary care benefits. On April 12, 2006, St. Vincent’s

Northern Rockies Pain Rehabilitation Center (NRPRC) presented Simms with a “Notice

of Privacy Policy” which Simms signed. This Notice informed Simms that NRPRC

“may share [Simms’ healthcare] information with your insurance companies” and “may

disclose any information we collect when permitted or required by law.          This may

include but is not limited to, disclosures related to a court subpoena or similar legal

requests, fraud investigations and an audit or security examination.”

¶5     The origin of this case—Simms III—is a letter from State Fund attorney Thomas

Martello to Schabacker dated June 20, 2007. The letter was written on Montana State

Fund letterhead, indicated that Martello was legal counsel for State Fund, and enclosed a

“compilation video” showing Simms engaged in various daily activities. The first video

was recorded in 2002; the following ten videos were recorded between September 27,

2006, and May 1, 2007. The 2006/2007 videos showed Simms walking, shopping,

lifting, and loading groceries without using assistive devices such as his walker or

wheelchair.   He was recorded entering, exiting, and driving a pickup truck without

assistance or apparent difficulty. However, the videos recording Simms and his wife

entering Schabacker’s office building for scheduled visits show Simms walking slowly

                                             3
and with apparent difficulty while using a four-wheeled walker.           Martello asked

Schabacker to review the recordings and provide his medical observations and comments

given the disparity between Simms’ diagnosis and prognosis (permanent total disability)

and his functionality as seen in the videos. Simms’ attorney was copied on the letter to

Schabacker.

¶6     Schabacker dictated a response to Martello’s letter on June 28, 2007, but did not

send the letter to Martello at that time. On July 2, 2007, Martello forwarded a letter to

Schabacker that Martello had received from Simms’ attorney. Again, Martello’s letter

was on Montana State Fund letterhead, but noted under Martello’s signature that Martello

was both legal counsel for the State Fund and special assistant attorney general (SAAG).

¶7     On August 17, 2007, Schabacker faxed his June 28 letter to Martello. In the letter

Schabacker noted that “there is an overwhelming disparity between what is present in the

video and what I have been left to believe is his functional status,” and that Simms’

“physical capabilities markedly exceed those he reported and demonstrated to me in

clinic.” The doctor stated that, based upon the videos, it appeared that Simms had

“nearly unrestricted physical capabilities in terms of lifting, carrying, walking, sitting,

tossing and driving” and was no longer incapable of gainful employment. Schabacker

stated he was disturbed by the videos. He indicated that Martello could contact him if

Martello had questions or concerns about the contents of the letter.

¶8     Martello distributed Schabacker’s letter to other persons and entities that had

formerly provided medical treatment or insurance coverage to Simms. Based upon the



                                             4
letter, State Fund and these parties sued Simms for fraud. These cases were ultimately

dismissed and State Fund continues to pay workers’ compensation benefits to Simms.

¶9    On July 28, 2010, Simms filed a complaint against Schabacker and St. Vincent

Healthcare alleging that Schabacker had unlawfully disseminated Simms’ private medical

information to a law enforcement officer. The District Court resolved various issues as

the litigation proceeded until Schabacker remained as the sole defendant and the single

remaining issue was whether Schabacker’s letter to Montana State Fund regarding

Simms’ abilities as displayed in the videos violated Simms’ right to healthcare privacy as

provided by § 50-16-801, et seq., MCA. In September 2013, both parties filed motions

for summary judgment. The District Court held oral argument on these motions on

October 7, 2013, and on October 30 rendered its order and decision.

¶10   The court addressed the importance of the physician-patient privilege but

concluded that the disclosure statutes applicable to workers’ compensation cases

authorized Schabacker to have ex parte communications with Montana State Fund

pertaining to Simms’ relevant healthcare, and thus provided an exception to the

physician-patient privilege.   The court noted that State Fund and Schabacker had a

history of ex parte communications regarding Simms’ case as authorized by statute, and

that this letter was in keeping with past correspondences. The court also concluded that

Schabacker did not knowingly assist a law enforcement agency when he discussed

Simms’ medical condition with State Fund. Consequently, the District Court granted

Schabacker’s motion for summary judgment and denied Simms’ motion.

¶11   Simms filed a timely appeal.

                                            5
                                STANDARD OF REVIEW

¶12    We review a district court’s ruling on a motion for summary judgment de novo,

applying the same criteria of M. R. Civ. P. 56 as did the district court. Summary

judgment “should be rendered if the pleadings, the discovery and disclosure materials on

file, and any affidavits show that there is no genuine issue as to any material fact and that

the movant is entitled to judgment as a matter of law.” M. R. Civ. P. 56(c)(3); Baumgart

v. State, 2014 MT 194, ¶ 13, 376 Mont. 1, 332 P.3d 225 (citations omitted).

¶13    In response to a motion for summary judgment, the non-moving party must

provide material and substantial evidence setting forth specific facts to raise a genuine

issue of material fact, and cannot merely rely upon speculative or conclusory statements.

Baumgart, ¶ 14 (citations omitted).

                                      DISCUSSION

¶14 Did the District Court err in concluding that Schabacker did not knowingly assist
law enforcement and that Montana law authorized Schabacker’s letter to Montana State
Fund addressing Simms’ medical condition?

¶15    The District Court concluded that the workers’ compensation statutory scheme

provides exceptions to the physician-patient confidentiality privilege by allowing ex parte

communications between a claimant’s physician and the workers’ compensation insurer.

The court concluded that Schabacker’s communications with State Fund relative to

Simms’ medical condition, including the subject letter to Martello, were authorized under

Sections 50-16-805(1), 50-16-527, and 39-71-604(2), MCA. The relevant portions of

these statutes are set forth below:

       50-16-805 Disclosure of information allowed for certain purposes.

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       (1) To the extent provided in 39-71-604 and 50-16-527, a signed claim for
       workers’ compensation or occupational disease benefits authorizes
       disclosure to the workers’ compensation insurer, as defined in 39-71-116,
       by the health care provider.

       50-16-527 Patient authorization — retention — effective period —
       exception — communication without prior notice for workers’
       compensation purposes.
                                    .   .  .

       (4) Notwithstanding subsections (2) and (3), a signed claim for workers’
       compensation or occupational disease benefits authorizes disclosure to the
       workers’ compensation insurer, as defined in 39-71-116, or to the agent of a
       workers’ compensation insurer by the health care provider. The disclosure
       authorized by this subsection authorizes the physician or other health care
       provider to disclose or release only information relevant to the claimant’s
       condition. Health care information relevant to the claimant’s condition may
       include past history of the complaints of or the treatment of a condition that
       is similar to that presented in the claim, conditions for which benefits are
       subsequently claimed, other conditions related to the same body part, or
       conditions that may affect recovery. A release of information related to
       workers’ compensation must be consistent with the provisions of this
       subsection. Authorization under this section is effective only as long as the
       claimant is claiming benefits. This subsection may not be construed to
       restrict the scope of discovery or disclosure of health care information as
       allowed under the Montana Rules of Civil Procedure, by the workers’
       compensation court, or as otherwise provided by law.

Finally, § 39-71-604(2), MCA, contains a provision identical to § 50-16-527(4), MCA,

set forth above.

¶16    Simms argues that the above statutes do not excuse Schabacker’s conduct. He

maintains that Schabacker’s letter to Martello in response to his receipt of the videos was

atypical of the parties’ previous correspondence and is actionable because Martello’s

July 2, 2007 letter revealed to Schabacker that Martello was acting in his capacity as a

“Special Assistant Attorney General.” The text of Martello’s letter—which was on State

Fund stationery—makes no reference to the SAAG capacity or to any criminal

                                             7
investigation; the quoted words simply appear under Martello’s signature.          Simms

maintains that in light of this “disclosure” on the Martello letter, Schabacker knew he was

assisting in a criminal investigation rather than simply providing information pertaining

to Simms’ medical condition, and that Schabacker should be held liable for providing

medical opinions to a law enforcement agent in a criminal investigation that are adverse

to his own patient.

¶17    In response, Schabacker points out that he had responded to multiple Montana

State Fund communications over the years, all arriving on the same letterhead, regarding

Simms’ progress and treatment throughout the time that he acted as Simms’ treating

physician, and that this correspondence was exchanged as authorized by the statutes

quoted above. These letters were copied to Simms, and Simms never objected to the

communications. Schabacker submitted a sworn affidavit to the effect that when he

drafted his response to Martello’s initial letter containing the videos, he had no

knowledge that Martello was associated with law enforcement in any manner. He stated

he did not consider Martello’s SAAG title to be a factor when responding to Martello’s

letter, and that he did not know that a criminal investigation of Simms was underway and

never intended to assist in any such investigation.

¶18    In entering summary judgment, the District Court concluded that Schabacker and

the State Fund were authorized to conduct ex parte communications with each other, and

that the communications properly centered on healthcare information relevant to Simms’

condition for which he was claiming benefits. The court found that the Notice of Privacy

Policy executed by Simms, when read in conjunction with authorizing statutes

                                             8
(§§ 50-16-805(1), 50-16-527, and 39-71-604, MCA), expressly permitted Schabacker to

release relevant healthcare information regarding Simms to State Fund. While the court

found it “troubling” that State Fund sent the videos to the doctor in the first place, it

observed that the issue before the court was whether Schabacker’s response to the videos

breached the physician-client privilege and Simms’ right to the privacy of his medical

information. The court concluded that in light of the executed Notice of Privacy Policy

and the statutes authorizing such communications, Schabacker did not breach the

privilege, and further that the doctor had established that he had no knowledge that he

was assisting a law enforcement agency when he wrote the letter to Martello. We find no

error in these conclusions.

¶19    The sole basis for Simms’ complaint against Schabacker is that because of the

reference to Martello’s SAAG status in one letter, Schabacker knew he was participating

in a criminal investigation against his own patient when he informed Martello of his

reaction to the videos. Schabacker flatly denied in an affidavit and sworn testimony that

he knew Martello was acting in a law enforcement capacity, and the District Court relied

upon these denials to conclude that the doctor had no knowledge he was assisting a law

enforcement agency. However, we conclude that even if the SAAG status noted at the

bottom of Martello’s letter could arguably raise a question of fact about what the doctor

knew, summary judgment was still appropriate in light of the provision in the Notice of

Privacy Policy that NRPRC “may disclose any information we collect . . . [which] may

include . . . disclosures related to . . . fraud investigations.” See Opinion, ¶ 4. Thus, even

if Schabacker suspected that a fraud investigation had commenced, his disclosure would

                                              9
nonetheless be protected by virtue of the language of the Notice of Privacy Policy which

was signed by Simms. Notably, Simms has not argued that he was coerced into signing

the Notice or that he did not understand its contents.

¶20    The Dissent maintains that we err in omitting § 50-16-805(2), MCA, from our

discussion. It posits that this statute, which addresses those situations in which healthcare

providers may disclose healthcare information for law enforcement purposes, is in

essence an absolute liability statute in that it does not require a healthcare provider to

know that he is making a disclosure to law enforcement authorities in order for a violation

of the statute to be established. We reject this argument for three reasons.

¶21    First, Simms has consistently argued that Schabacker knowingly made prohibited

disclosures to Martello as SAAG in violation of the statute; thus, the position interposed

by the Dissent is contrary to Simms’ primary contention on appeal.

¶22    Second, we disagree with the proposition that the statute is an absolute liability

statute. The Legislature is well aware of how to craft a statute so as to make clear that it

intends the statute to impose absolute liability for the conduct described. For example,

§ 61-8-401(7), MCA, which addresses the offense of driving under the influence of

alcohol or drugs, provides: “Absolute liability as provided in 45-2-104 [limiting the

circumstances under which absolute liability may be imposed] will be imposed for a

violation of this section.” The intent to impose absolute liability is expressly stated.

State v. Parks, 2013 MT 280, ¶ 40, 372 Mont. 88, 310 P.3d 1088 (Cotter, J., concurring).

Here, there is no language in the statute to indicate that absolute liability is intended.



                                              10
¶23       Finally, the Dissent ignores the fact that the Notice of Privacy Policy signed by

Simms authorizes healthcare providers to make disclosures “related to fraud

investigations.” Nothing in § 50-16-805(2), MCA, limits or precludes actions taken in

accordance with the provisions of such a document.

                                        CONCLUSION

¶24       For the foregoing reasons, the decision of the District Court is affirmed.


                                                     /S/ PATRICIA COTTER

We concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ LAURIE McKINNON


Justice Michael E Wheat, dissenting.

¶25       I disagree with the Court’s interpretation of the controlling statute. Therefore, I

dissent. Because I believe a genuine issue of material fact existed, I conclude that the

District Court erred by granting summary judgment, and would remand for trial on the

merits.

¶26       As the District Court correctly noted, this Court has not yet applied or interpreted

§ 50-16-805, MCA, the statute that controls the matter at bar. Before we can decide

whether the District Court correctly determined that there were no genuine issues of

material fact, we must first review the District Court’s decision as to what facts are

material. This is a question of statutory interpretation, which we review de novo. See

Gordon v. Kuzara, 2012 MT 206, ¶¶ 13, 18, 366 Mont. 243, 286 P.3d 895.

                                                11
¶27    Without explanation, the Court implies that the proper inquiry for determining

whether a violation of § 50-16-805, MCA, occurred is whether the health care

provider —Schabacker in this case—knowingly assisted a law enforcement agency. This

interpretation is not supported by the plain language of the statute.

¶28    Notably, the Court omits § 50-16-805(2), MCA, from its discussion. Instead, it

limits its discussion to § 50-16-805(1), MCA.        Yet, the meaning of § 50-16-805(1),

MCA, is not clear without reference to § 50-16-805(2), MCA. Those sections read:

              (1) To the extent provided in 39-71-604 and 50-16-527, a signed
       claim for workers’ compensation or occupational disease benefits
       authorizes disclosure to the workers’ compensation insurer, as defined in
       39-71-116, by the health care provider.
              (2) A health care provider may disclose health care information
       about an individual for law enforcement purposes if the disclosure is to:
                     (a) federal, state, or local law enforcement authorities to the
       extent required by law; or
                     (b) a law enforcement officer about the general physical
       condition of a patient being treated in a health care facility if the patient
       was injured by the possible criminal act of another.

¶29    It is a maxim of statutory interpretation that a general statute will yield to a

specific statute. Section 1-2-102, MCA; State v. Plouffe, 2014 MT 183, ¶ 27, 375 Mont.

429, 329 P.3d 1255.        Here, § 50-16-805(1), MCA, read with §§ 39-71-604 and

50-16-527, MCA, states a general rule: a health care provider may disclose relevant

health care information to the workers’ compensation insurer. Yet, where the disclosure

is for more specific “law enforcement purposes” this rule yields to § 50-16-805(2), MCA.

In such case, disclosure can only be made to law enforcement authorities or law

enforcement officers, and only to the specific extent allowed.



                                             12
¶30   Thus, the proper inquiry under this statute does not begin and end with whether

the health care provider knew that he or she was disclosing information to a law

enforcement authority; § 50-16-805(1), MCA, does not provide a safe-harbor for health

care providers just because they subjectively believe their disclosures are being made to

the workers’ compensation insurer. Rather the inquiry is two-fold. First, a court must

determine for what purpose the disclosure of health care information was made. While

the health care provider’s knowledge of the identity of the disclosure recipient may be a

relevant factor here, it seems unlikely that it will be dispositive in every instance. For

most purposes, the provider may properly disclose information to the workers’

compensation insurer.     If the disclosure was made for law enforcement purposes,

however, the court must make a second inquiry.         Namely, it must ensure that the

disclosure was to “law enforcement authorities to the extent required by law,” or to “a

law enforcement officer about the general physical condition of a patient being treated in

a health care facility if the patient was injured by the possible criminal act of another.”

Section 50-16-805(2), MCA.

¶31   While the first inquiry may turn on the subjective knowledge or purpose of the

health care provider, the second does not. This Court has often stated that it will not

insert what has been omitted or omit what has been inserted. Section 1-2-101, MCA;

Shockley v. Cascade Cnty., 2014 MT 281, ¶ 19, 376 Mont. 493, 336 P.3d 375. Here, the

Court effectively omits the language regarding law enforcement purposes and inserts a

knowledge requirement into the second part of the analysis. This is not justified by the



                                            13
language of § 50-16-805, MCA.         Nor was such a requirement intended by the

Legislature. This becomes clear upon consideration of § 50-16-817, MCA.

¶32   That section provides civil remedies for violation of Title 50, part 16, MCA, and it

is the section pursuant to which relief could be granted in the present case. Notably,

§ 50-16-817(4), MCA, provides that:

      If the court determines that there is a violation of this part, the aggrieved
      person is entitled to recover damages for pecuniary losses sustained as a
      result of the violation and, in addition, if the violation results from willful
      or grossly negligent conduct, the aggrieved person may recover not in
      excess of $5,000, exclusive of any pecuniary loss.

(emphasis added). This statute allows recovery of damages for any violation of Title 50,

part 16, MCA, including § 50-16-805, MCA.            It does not require any particular

knowledge or state of mind. Instead, it allows for enhanced damages when certain states

of mind are shown. See § 1-1-204(5), MCA (defining “willfully”).

¶33   The specific inclusion of enhanced damages for “willful” conduct or “grossly

negligent” conduct, further demonstrates that the Legislature specifically excluded the

similar, state-of-mind modifier “knowingly” in both § 50-16-817, MCA, and the related

§ 50-16-805, MCA.       Compare § 1-1-204(2), MCA (defining “knowingly”), with

§ 1-1-204(5), MCA (defining “willfully”).        The Legislature intended to make no

distinction between a knowing violation and an unknowing one.

¶34   Thus, the Court errs by making that distinction here.          While the difference

between the Court’s analysis and the one discussed in this dissent may seem minor, the

practical outcome is not.     By requiring actual knowledge of disclosure to a law

enforcement entity, the Court creates incentives for the health care provider to learn as

                                            14
little as possible about the particular entity to whom he or she is providing information.

This further complicates an already complex relationship between the patient, doctor,

workers’ compensation insurer, and law enforcement officials. The Court’s interpretation

pushes the health care provider, who is already caught between the other parties and must

already carefully balance his or her relationships with the patient, insurer, and law

enforcement, further away from the patient; it allows the health care provider to become

an agent of law enforcement rather than an advocate for his patient, if he or she does so

unknowingly. This is not what the Legislature intended.

¶35    Instead, the Legislature stated in § 50-16-801, MCA, that:

       [H]ealth care information is personal and sensitive information that if
       improperly used or released may do significant harm to a patient’s interests
       in privacy and health care or other interests; [and]

                                         .   .    .

       it is in the best interest of the citizens of Montana to have certain
       requirements, with respect to the use or release of health care information
       by health care providers, that are more restrictive than or additional to the
       health care privacy protections of HIPAA.

The two-step analysis required by § 50-16-805, MCA, better protects these legislative

goals than the Court’s interpretation. It places the burden of safeguarding a patient’s

information and of determining whether its disclosures are legally permissible with the

health care provider; depending on the purpose for the disclosure, the health care provider

must ensure that it is disclosing information to a permissible party. As the Legislature

intended, this bolsters the doctor-patient relationship and helps to ensure that privileged




                                             15
health care information is protected. For this reason, the analysis discussed above is

preferable to the analysis applied by the Court.

¶36    Yet, regardless of whether or where a subjective “knowingly” standard should be

applied, I disagree with the Court’s decision that there was no genuine issue of material

fact. As the District Court did, this Court relies too heavily on Schabacker’s affidavit and

testimony, while giving too little weight to Simms’ arguments and evidence. Simms

presented arguments and evidence indicating the following:

    Schabacker was contacted by Thomas Martello, a Special Assistant
     Attorney General.

    Schabacker was given what he knew to be surveillance footage of Simms.

    Schabacker provided more than health care information to Martello;
     Schabacker suggested “misrepresentation” on the part of Simms and
     declared the surveillance tape to be “disturbing” in light of the
     Schabacker’s testimony and advocacy on Simms’ behalf.


Additionally, Schabacker stated in his affidavit that:

       Although my main purpose in writing the letter was to communicate with
       the Montana State Fund regarding Simms’ condition, I also wanted to make
       clear that I had not previously known that Mr. Simms had the mobility
       portrayed in the videos and that I would need to reassess his condition and
       treatment. I also wanted to state that my prior assistance to Mr. Simms in
       obtaining benefits was done without any knowledge of his true mobility
       and that I may have inadvertently assisted him in obtaining benefits he was
       not entitled to.

¶37    A court considering summary judgment must view the evidence in a light most

favorable to the non-moving party, and all reasonable inferences are to be drawn in favor

of the party opposing summary judgment. Thornton v. Flathead Cnty., 2009 MT 367,

¶ 13, 353 Mont. 252, 220 P.3d 395. Drawing such inferences, the foregoing evidence
                                             16
may reasonably establish that Schabacker knew he was disclosing health care information

to a special assistant attorney general; that Schabacker understood the surveillance nature

of the videos he was supplied with; and that the character of Schabacker’s

communication was defensive of Schabacker’s own role and accusatory toward Simms.

Accordingly, a trier of fact might reasonably have found that Schabacker knew he was

disclosing health care information to a law enforcement agency or for law enforcement

purposes.

¶38    Yet, the District Court gave credence to Schabacker’s self-serving assertion that he

did not know that Martello was a special assistant attorney general or involved with a

criminal investigation at the time Schabacker wrote his letter. Viewed in the light most

favorable to Simms, this statement at most establishes that Schabacker did not know

Martello’s identity when he was writing the letter. Given that over a month passed

between the times when the letter was written and when it was sent, this says nothing of

Schabacker’s knowledge at the time the health care information disclosure actually

occurred. For these reasons, there was a genuine issue of material fact, and the District

Court should not have granted summary judgment.

¶39    The Court contends that the foregoing is of little consequence given the disclosure

permissions granted in the Notice of Privacy Policy.         Yet, the Court ignores the

limitations built into what it interprets as the document’s unequivocal permission for the

health care provider to disclose health care information to the workers’ compensation

insurer. See Opinion, ¶ 18. While the Notice of Privacy Policy does, as the Court states,

allow NRPRC to “disclose any information [it] collect[s],” NRPRC is only allowed to do

                                            17
so “when permitted or required by law.” Given the foregoing discussion, whether the

disclosure in this case was permitted by law turns on whether Schabacker made the

disclosure for a law enforcement purpose or, under the Court’s analysis, knowingly to a

law enforcement agent. In either case, there is a genuine issue of material fact and the

Notice of Privacy Policy does not make summary judgment proper.

¶40    I believe this Court’s interpretation of § 50-16-805, MCA, was erroneous. For this

reason, I cannot join the Court’s Opinion.         I dissent because under the proper

§ 50-16-805, MCA, analysis and the one applied by this Court, there was a genuine issue

of material fact. I would reverse and remand to the District Court for this reason.



                                                 /S/ MICHAEL E WHEAT




                                            18
