FRANK H. WHITE, JR. Appellant
LUMBERMEN'S MUTUAL CASUALTY Respondent.
ORDER DISMISSING APPEAL
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.
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).
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).
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,
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
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.
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.
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.
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 ...