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Harball v. Liberty Mutual Fire Insurance Co.

Court of Workers Compensation of Montana

November 3, 1995

RENE ANNE HARBALL Petitioner
v.
LIBERTY MUTUAL FIRE INSURANCE COMPANY Respondent/Insurer for J.C. PENNEY COMPANY Employer.

          ORDERDENYING INDEPENDENT MEDICAL EXAMINATION AND STAYING FURTHER PROCEEDINGS

          Mike McCarter Judge

         Summary: Claimant sought PPD benefits based on the determination by two physicians that she suffered 5% impairment and had restrictions. A physician hired by the insurer found 0% impairment and no restrictions based on records review. The insurer asked the Court to order claimant to attend an independent medical examination and functional capacities evaluation.

         Held: The parties agree the applicable statute is section 39-71-711, MCA (1989). Under subsection (2), both parties have obtained an impairment rating. Since the parties cannot agree on the rating, subsection (3) applies, which contemplates designation of an evaluator by the Department of Labor. This Court presently lacks jurisdiction to make further order on the matter.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-711, MCA (1989). Under section 39-71-711, MCA (1989), where each party has already obtained an impairment rating, and the parties dispute the appropriate rating, the procedure to be followed is designation of an evaluator by the Department of Labor, as specified in subsection (3) of the statute. Until that procedure is followed, the Workers' Compensation Court lacks jurisdiction to make further orders on the dispute and will not compel claimant to attend.
Impairment: Impairment Ratings. Under section 39-71-711, MCA (1989), where each party has already obtained an impairment rating, and the parties dispute the appropriate rating, the procedure to be followed is designation of an evaluator by the Department of Labor, as specified in subsection (3) of the statute. Until that procedure is followed, the Workers' Compensation Court lacks jurisdiction to make further orders on the dispute and will not compel claimant to attend an Independent Medical Examination or Functional Capacities Evaluation.
Benefits: Permanent Partial Disability Benefits: Generally. Under section 39-71-711, MCA (1989), where each party has already obtained an impairment rating, and the parties dispute the appropriate rating, the procedure to be followed is designation of an evaluator by the Department of Labor, as specified in subsection (3) of the statute. Until that procedure is followed, the Workers' Compensation Court lacks jurisdiction to make further orders on the dispute and will not compel claimant to attend.
Benefits: Impairment Awards. Under section 39-71-711, MCA (1989), where each party has already obtained an impairment rating, and the parties dispute the appropriate rating, the procedure to be followed is designation of an evaluator by the Department of Labor, as specified in subsection (3) of the statute. Until that procedure is followed, the Workers' Compensation Court lacks jurisdiction to make further orders on the dispute and will not compel claimant to attend.
Independent Medical Examination (IME): Generally. Under section 39-71-711, MCA (1989), where each party has already obtained an impairment rating, and the parties dispute the appropriate rating, the procedure to be followed is designation of an evaluator by the Department of Labor, as specified in subsection (3) of the statute. Until that procedure is followed, the Workers' Compensation Court lacks jurisdiction to make further orders on the dispute and will not compel claimant to attend.

         On October 30, 1995, the Court was contacted by Mr. Larry W. Jones and Mr. Bernard J. Everett who respectively represent respondent and petitioner. Mr. Jones sought an order for an IME by Dr. Chambers and a physical capacities evaluation in connection with that evaluation. Mr. Everett opposed the request but agreed to telephonic presentation and argument of the motion.

         The essential facts, as appear in the petition and from the attorneys' representations, are as follows. Claimant injured her shoulder in January 1991. She later received an impairment rating of 5% from two physicians, one or both of whom were treating her. According to Mr. Everett the physicians have indicated that she suffers a physical restriction on account of her injury. At the respondent's request, Dr. Chambers reviewed the claimant's medical records and issued an opinion that claimant had 0% impairment and no physical restrictions. He did not examine claimant, indeed claimant refused the respondent's request that she submit to his examination. Nonetheless, by issuing an impairment rating and opinion, Dr. Chambers thereby indicated that he had a sufficient basis to do so.

         During the October 30, 1995 telephonic conference, I indicated that I would order an IME by Dr. Chambers but would only order an FCE if the doctor felt an FCE necessary to formulate his opinions. I also suggested to counsel that consideration be given to settling the case since the monetary amount -- $1, 500 -- is small and is less than an IME and litigation costs.

         On November 2, 1995, counsel again arranged a telephone conference. During this conference we determined that the statute applicable to impairment ratings is section 39-71-711, MCA (1989). Both counsel agree that the 1989 version of section 39-71-711, MCA, applies in this case. The section provides:

         39-71-711. Impairment evaluation - ratings. (1) An ...


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