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

December 16 2014

Case Number: DA 13-0788
2

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. 
3

¶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 
4

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 
5

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. 
6

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.
7

(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 
8

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 
9

(§§ 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 
10

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.
11

¶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.
12

¶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.
13

¶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 
14

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 
15

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 
16

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 
17

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 
18

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