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White v. Lumbermen's Mutual Casualty

Court of Workers Compensation of Montana

September 8, 1994

FRANK H. WHITE, JR. Appellant
v.
LUMBERMEN'S MUTUAL CASUALTY Respondent.

          ORDER DISMISSING APPEAL

          MIKE MCCARTER JUDGE

         This matter involves an occupational disease proceeding which is presently pending before the Department of Labor and Industry (DLI). Frank H. White, Jr. (White), brings this interlocutory appeal from an order directing White to submit to an independent medical examination (IME) by a physician who has not been designated as a member of the occupational disease panel. White argues that section 39-72-607, MCA, precludes an IME by a non-panel member.

         Factual Background

         While specific facts are not essential to a resolution of this case, they provide the context for the issue presented. Based on the DLI file, it appears that White was examined by at least two duly designated members of the occupational disease panel. See Order Referring Copy of Medical Panel Reports to Parties (December 16, 1993) and section 39-72-602(b), MCA. The medical panel appointed by the DLI thereafter concluded that Mr. White is suffering from an occupational disease, namely meat wrapper's asthma. Based on the request for hearing filed by Mr. White, the panel apparently concluded that he is nonetheless employable. See Request for Hearing (December 20, 1993).

         Both parties thereafter requested a hearing. White objected to the panel's conclusion concerning his employability. Id. The insurer, Lumbermen's Mutual Casualty (Lumbermen's), sought a determination as to "whether the Claimant's condition meets the definition of an occupational disease and to what extent, if any, the Employer/Insurer [sic] responsible for the Claimant's condition." Request for Hearing (December 29, 1993).

         On May 12, 1994, Lumbermen's filed a motion requesting that the DLI order White to submit to an independent medical examination (IME) by Dr. Stephen Demeter, a specialist in pulmonary medicine. Dr. Demeter practices medicine in Akron, Ohio.

         In an Interim Order Partially Granting and Partially Denying Motion for Physical Examination, DLI's hearing examiner denied the request for an examination by Dr. Demeter but directed White to "submit to a duly scheduled medical examination by a Panel member who is a pulmonary specialist." Interim Order at 5 (underlining in original). The hearing examiner refused to order that the panel member perform the specific tests requested by Lumbermen's. [1]

         The original Interim Order was issued prior to the hearing examiner's receipt of a reply brief by Lumbermen's. That reply brief was received shortly after the original order issued and caused the hearing examiner to reconsider. On May 25, 1994, the hearing examiner issued an Amended Interim Order Granting Motion for Compulsory Physical Examination. In that order he concluded, "[B]ased upon the Insurer's offer and willingness to pay to have the Claimant examined by Dr. Demeter in Montana, the undersigned concludes that such an examination is in order with this specialist." Amended Interim Order at 1. The order went on to note that Dr. Demeter is a specialist in diagnosing and treating meat wrappers asthma. Id. It is from this amended order that Mr. White appeals.

         Jurisdiction

         While the judicial review provisions of the Montana Administrative Procedure Act (Title 2, chap. 4, part 7, MCA) are not expressly applicable to the Workers' Compensation Court, they have been followed in previous decisions, e.g., State Compensation Insurance Fund v. Lee Rost Logging, 252 Mont. 97, 102, 827 P.2d 85 (1992), and will be followed here.

         Section 2-4-701, MCA provides:

2-4-701. Immediate review of agency action. A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy.

         In its brief on appeal Lumbermen's does not contest this Court's jurisdiction to review the Amended Interim Order. Moreover, the physical examination contemplated by the Order involves a significant invasion of Mr. White's privacy. Waiting until a final agency decision to review his contentions would not adequately protect ...


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