Below is a new article written by attorney Matt Murphy that will appear in the Spring 2024 Trial Trends. It’s a Q&A interview with Montana’s new Workers’ Compensation Court judge, Lee Bruner. Matt is the first MTLA member to have the opportunity to formally interview Judge Bruner since he took the bench.
How did your family end up in Butte, America?
When my family came to Montana, it was still part of the Idaho territory, and they started a dairy in Elk Park. The stone foundations are still there. When the highway went in, the land was condemned. That would be my great grandfather, and when I meet him someday, I am going to ask him why in the heck did you choose Elk Park? You could have gone to the Gallatin Valley, the Bitterroot, Flathead. I bet he tells me it was August and the whole state was on fire, but when we got to Elk Park, the springs were running and the grass was green, and we thought this is the best place in the world. And then winter came…
What can you tell us about your upbringing?
My mom was a schoolteacher here in the valley, and my dad was a smelter man. I went to high school at Butte Central. After, I enlisted in the Air Force and served from 1986-1990. I worked as a carpenter for several years in Texas, and then came back to Montana and obtained a bachelor’s degree in physics from MSU.
Close to graduation, I picked up the Bozeman Daily Chronicle and noticed there were not many jobs for theoretical physicists out there. My advisor suggested I consider medicine or law to make a living.
Medical school takes about 12 years, and a million dollars, so after talking to physics professor and expert witness Denny Lee, I decided on law school here in Montana.
What did you do after law school?
I interviewed with Poore, Roth and Robinson in this very room of the old Evil Knievel building. They were a great firm and agreed to hire me to practice in environmental law, which I had some background in already. However, on my first day, I spoke with Bob Brown, who did medical malpractice defense, and he asked me to look at a few files. I ended up doing medical malpractice defense for 22 years.
After that period, I was essentially ready to retire, and I closed up my practice here in Butte and was farming. Allen Payne, a Helena friend and partner at Doney Crowley, called me and asked if I would co-counsel a couple big cases headed to trial as there was no one who had tried cases at the firm then. I went over and tried two cases, which were very interesting, and within six months I was working for them.
I worked for Doney Crowley for about four years before I grew a little tired of answering discovery on Saturday afternoons. Around this time, my friend Bowen Greenwood was elected as the Clerk of the Montana Supreme Court and asked if I would come be his deputy. So, I became a deputy for five years while still practicing on the side.
You have a 6th generation family ranch south of Whitehall (“RT Farm and Ranch, Co.”), did you continue to operate your ranch this entire time?
Yes, I have operated it the entire time, and now my sons help out. (Editorial insert: There are fish, whitetail and occasionally elk on this ranch).
Speaking of your sons, what can you tell us about your family?
My wife’s name is Pollann, and she also grew up in Butte. I met her while I was living with my future brother-in-law during college. Without warning, he took both of us to Speedway Tavern, ordered two pitchers of margaritas, and then suddenly and mysteriously had to leave. The rest is history, and good history. We have been married since 1995.
We have three sons, Robert, Michael and John. Robert is obtaining a master’s degree in restoration ecology from Montana Tech here in Butte, basically reclaiming mining sites. He lives here in Butte and helps me out at the ranch quite a bit.
Michael is obtaining a PhD in mathematics at the U of M.
John is obtaining a mechanical engineering degree from MSU and works as a helicopter mechanic for the National Guard. He wants to be a pilot.
They all take after their mom.
How has your physics degree helped you in the law?
In one way or another, physics underpins everything. Also, studying physics is deeply analytical, and similar to good legal analysis.
Is there a primary reason you wanted to be a Judge?
I was a clerk and part time practitioner when this opportunity arose. I thought it sounded very interesting, so I applied. The application committee must have been sleeping because I got the job.
Public service is very important, and something I have always valued. I was a public servant as a deputy clerk, and I believe my role as Judge of the Work Comp Court is also public service. I believe I am there to serve injured Montanans by adjudicating workers’ compensation benefit disputes.
Your application listed the three primary qualities of a good judge as “fairness, work ethic, and patience.” Which of those qualities jumps out as important today and why?
Fairness. It is extremely important for judges to see the whole picture and understand their role is not the same as the advocating attorney. This is especially true of the work comp judge who is both the judge and the finder of fact, as we do not have juries in that role.
You also referenced “textualism” as a judicial virtue, how do you think a textualist philosophy should be applied in WC claims?
My job is not to write the law but to read the statutes written by the legislature and apply them to the facts at issue. That is sometimes easier said than done. Even in my limited time on the bench, I have seen several instances where a set of facts do not fit nicely into a particular statute. In those circumstances, I will look to precedent and other resources, such as Larson’s on Workers’ Compensation.
Do any workers’ compensation decisions come to mind as important in the last 5-10 years?
1. Barnhart v. Montana State Fund, 2022 MT 250, 411 Mont. 138, 522 P.3d 418
(Westlaw Synopsis: Claimant filed petition seeking order directing workers’ compensation carrier to recalculate permanent partial disability (PPD) indemnity benefits at rate based on aggregate average weekly wage from both of her time-of-injury concurrent employments, rather than only based upon her average weekly wage from employment she was precluded from working upon reaching maximum medical improvement.)
2. Hensley v. Montana State Fund, 2020 MT 317, 402 Mont. 277, 477 P.3d 1065
(Westlaw Synopsis: Workers’ compensation claimant, who had been assigned Class 1 impairment rating, petitioned for trial, alleging that statute allowing impairment awards for claimants without actual wage loss only if they had Class 2 or higher impairment rating violated Equal Protection Clause of Montana Constitution and that the Montana State Fund should pay her impairment award for her 4% whole-person impairment rating. Claimant moved for summary judgment.)
3. Malcomson v. Liberty Northwest, 2014 MT 242, 376 Mont. 306, 339 P.3d 1235
(Westlaw Synopsis: Claimant brought action against workers’ compensation insurer, seeking to have her benefits reinstated. Supreme Court held: (1) statutory provision that authorized ex parte communications between a workers’ compensation claimant’s health care provider and claimant’s medical providers was facially unconstitutional; (2) WCC was not required to conduct the two-part test set forth in Katz v. United States before making its determination as to whether statutory provision infringed on claimant’s privacy interests; and, (3) limited ex parte contact between insurer and health care provider for the sole purpose of facilitating the administrative aspects of the claim handling procedure would not violate claimant’s right of privacy.
What’s a good piece of legal advice you’ve received, and how has it influenced you?
Before you get into a deal, know how you are going to get out of it. I probably have not followed that advice as diligently as I should have, and I usually regret it if the deal goes sideways.
What are your immediate impressions of the bench so far?
Workers’ compensation is a nuanced area of law, which commenced when the Grand Bargain was struck. In Montana the laws change every two years, and there is lots of precedent. It has been exciting and difficult to dive into the cases and the minutiae of Montana Work Comp Law. I do like deep analysis (I studied theoretical physics), and with a legal background in medical malpractice, I am comfortable addressing the medical issues in claims.
What or who have been your resources in acclimating to your role as the Work Comp Judge?
I read lots of cases. I will read every case which is cited by either party in a brief or motion. I also read the Work Comp Act, discuss issues with the current Court staff who have worked there for some time, and talked extensively with former judge David Sandler. I also have had conversations with practitioners in this field.
Do you plan to transition the Court to efiling? ETA on this?
Yes, but this requires significant infrastructure on a minimal budget. Many people do not understand that the Work Comp Court is organized under Montana’s Department of Labor and Industry, not its court system, so we do not receive the same funding or support as the rest of Montana’s courts. As such, this is a goal of mine, which I will work toward but cannot give an ETA.
What can attorneys do to help you do your job?
Submit quality work product and avoid discovery or litigation gamesmanship.
You have put together a rules committee, what are your goals and expectations for the committee?
I want the rules committee to make recommendations on any area of work comp procedure they feel will improve or simplify the system, help them do their job, and help me do mine.
If there is a discovery dispute, the prior judges would allow informal phone conferences arranged via email in lieu of extensive briefing, is that a practice that you will be continuing?
If the parties believe an approach will save time and client resources, I will try to accommodate their requests. However, I am not interested in informal briefs submitted via email and require that parties fully brief an issue before asking for an informal hearing. After that, I am willing to give my initial take on an issue prior to a formal order.
Prior judges often attended expert depositions via Zoom, especially if the expert is not expected to testify live at trial. Is that a practice you will be continuing?
I believe strongly in credibility determinations in-person, at trial, as the best way to ascertain the truth, so I will not participate in discovery depositions. I am willing to accommodate witnesses who reasonably cannot attend trial in-person by allowing them to attend via Zoom, but do not prefer this.
What are your thoughts on special trial settings?
I will entertain this request and do my best to accommodate.
Do you have any goal or timeline for issuing decisions after trial?
As fast as possible while maintaining a high-quality product.
Are there any facets of MT WC law or procedure that you believe need to change?
Nothing jumps to mind. I believe the body of Montana Workers’ Compensation Law as it currently exists is well-functioning, well established and the product of many cases which have interpreted the various statutes. The previous judges have done a good job summarizing the history of the law, the legislative intent, and the law has evolved into a nuanced system that seems to be functioning well.
Are you aware of any significant trends or developments in MT WC law right now?
The Court has limited jurisdiction, and I will stay within the boundaries proscribed by the legislature. There is room for the Workers’ Compensation Court to expediently handle issues that arise in the administration of work comp benefits, such as the appointment of a guardian ad litem, but this grant of power must come from the legislature. I encourage anyone to propose ideas such as this to the legislature.
What is one thing you would communicate to the entire work comp bar if you could?
Let me know how you think I can help the workers’ compensation system or your clients. If you have an idea, I would love to hear it. I welcome feedback or suggestions.
What are some of your favorite hobbies or pastimes?
Shooting.
Doing anything with my family.
Montana outdoor activities.
What are two or three books everyone should read?
12 Rules for Life (Jordan Peterson)
Dress for Success (John Molloy)
Rich Dad Poor Dad (Robert Kiyosaki)
If you could put any phrase or quote on a billboard, what would it be?
“Winter is coming.” Qualifier: this has been a mantra of ranching for many years before I learned it was the words of House Stark. Those are also excellent books. It also reminds each of us that challenges will come into each of our lives, and we need to prepare physically, financially and spiritually to meet those challenges.
(One of) the best restaurants in Montana?
Lamb Burger from Timber Bar in Big Timber
If you could have dinner with any historical figure, who and why?
Jesus, for obvious reasons.
References:
Judge Bruner’s Application for Judge of the Workers’ Compensation Court with Public Comment: https://governor.mt.gov/Judicial_Nominations/Vacancies
