ORDER COMPELLING ATTENDANCE AT INDEPENDENT MEDICAL
EXAM; ORDER DENYING PROTECTIVE ORDER; ORDER VACATING TRIAL
claimant in this matter has filed a petition seeking benefits
on account of carpel tunnel syndrome of the left wrist. Her
industrial accident involved an injury to her right wrist,
her left one. However, she alleges that the injury to her
right wrist caused her to compensate by overusing her left
hand, which in turn led to her developing carpal tunnel
syndrome of the left wrist.
request of the insurer, American Stores (American), Dr.
William S. Shaw, conducted an independent medical evaluation
of claimant in June of 1993, approximately nine or ten months
ago. Claimant's petition was filed February 3, 1994. On
March 17, 1994, American notified claimant that she should
appear for a further independent medical examination by Dr.
Thomas Richard in Missoula, Montana on March 29, 1994.
Claimant resisted the additional examination and American
filed a motion to compel the examination. Claimant responded
with a cross-motion for a protective order. These motions are
the subject of the present order.
who resides in Billings, argues that it is inconvenient for
her to attend an examination in Missoula because it will
interfere with her studies at Eastern Montana College. In its
reply, American offers to reschedule the examination at a
time convenient to her, thus avoiding any conflict with her
school schedule. That offer sufficiently addresses her
further reason for resisting the examination, claimant argues
that an examination in Missoula violates section 39-71-605
(1)(b), MCA (1991), which requires that the examination be at
a "place that is as close to the employee's
residence as is practical." The cited provision,
however, is inapplicable. The Montana Supreme Court has
repeatedly held that the law in effect at the time of the
injury must be applied in determining the rights and
obligations of the parties. E.g., Buckman v. Montana
Deaconess Hospital, 224 Mont. 318, 730 P.2d 380 (1986).
The Court has expansively stated the rule as extending to
"all aspects of a Worker's Compensation
claim," Monroy v. National Farmers Union
Property & Casualty Insurance, 246 Mont. 365, 805
P.2d 1343 (1990), and has applied that rule to statutes which
provide extra-judicial mechanisms for the evaluation of a
claimant, e.g., Grenz v. Prezeau, 244 Mont. 419, 798
P.2d 112 (1990) (holding that the methodology adopted by
the 1987 legislature for determining impairment ratings is
applicable only to injuries arising after the effective date
of the statute.) Claimant's industrial accident
occurred on March 9, 1989. The statutory language she cites
was inserted by 1991 Laws of Montana, ch. 613, sec. 64, and
is thus inapplicable.
time of her injury section 39-71-605(1)(b), MCA (1987),
(b) The request or order for such examination shall fix a
time and place therefor, due regard being had to the
convenience of the employee and his physical condition and
ability to attend at the time and place fixed. The employee
shall be entitled to have a physician present at any such
examination. So long as the employee, after such written
request, shall fail or refuse to submit to such examination
or shall in any way obstruct the same, his right to
compensation shall be suspended. Any physician or panel of
physicians employed by the insurer or the division who shall
make or be present at any such examination may be required to
testify as to the results thereof.
section does not require the examination to be held "as
close to the employee's residence as practical," but
it does require consideration of the "convenience of the
employee and his physical condition and ability to attend at
the time and place fixed." Claimant's bilateral
carpel tunnel condition is not on-its-face the sort of
condition which precludes travel to another city, and
claimant has not argued that she is physically
unable to travel. As to claimant's convenience and
ability to attend, she asserts that the examination will
interfere with her school attendance. However, American is
willing to reschedule the examination at a time which will
not interfere with her school, thus countering her argument.
claimant argues that American's request for a further
medical examination is unreasonable in light of Dr.
Shaw's prior IME. She suggests that if American desires an
updated appraisal of her condition it can send her back to
Dr. Shaw. Dr. Shaw specializes in occupational medicine. Dr.
Richard is an orthopaedic surgeon specializing in hand
surgery. Since claimant's complaints relate to her hand
and American has not previously had her examined by a hand
specialist, it is not unreasonable for American to now seek
an examination by a hand specialist. The Court is aware that
it is sometimes difficult to find Montana specialists who are
willing to perform IME's in workers' compensation
cases. While the 1991 amendment to section 39-71-605(1)(b)
may require a party seeking an out-of-town examination to
affirmatively demonstrate that no in-town specialist will
perform the examination, or that is otherwise impractical to
require examination by an in-town specialist, no such
requirement exists under pre-1991 law.
position is also supported by case law. Although factually
distinguishable, in Young v. John's IGA, 248 Mont.
46, 48, 807 P.2d 1369 (1991), the Supreme Court
characterized the insurer's right to an IME as follows:
"As the law now stands, we agree with the Workers'
Compensation Court that § 39-71-605, MCA, clearly gives
the insurer the right to a physician or panel of its own
the IME scheduled by American has been delayed by
claimant's refusal to attend, and will have to be
rescheduled for a later date, the scheduled trial date will
light of the foregoing discussion, IT IS HEREBY ORDERED AS
trial and pretrial dates set for this matter are vacated. A
new date will not be set until the parties have determined a
mutually convenient date for claimant's examination by
motion to compel attendance at independent medical
examination is granted and the claimant is
ordered to submit to an independent ...