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Stormont v. National Union Fire of Pittsburgh

Court of Workers Compensation of Montana

January 5, 1996

MARY C. STORMONT Petitioner
v.
NATIONAL UNION FIRE OF PITTSBURGH Respondent/Insurer for HILLHAVEN CORPORATION Employer.

          Submitted: January 3, 1996

          ORDER PERMITTING IME

          MIKE MCCARTER JUDGE

         Summary: Parties presented dispute regarding whether claimant must submit to independent medical examination by physician selected by insurer or whether Department of Labor and Industry must select the physician.

         Held: Under section 39-71-605, MCA (1995), a claimant must submit from time to time to examination by a physician or panel selected by the and shall also submit from time to time to examination by a department-selected physician. Limiting IMEs to physicians selected by the department would nullify one of the statutory provisions.

         Topics:

Constitutions, Statutes, Regulations and Rules: section 39-71-605, MCA (1995).
Under section 39-71-605, MCA (1995), a claimant must submit from time to time to examination by a physician or panel selected by the and shall also submit from time to time to examination by a department-selected physician. Limiting IMEs to physicians selected by the department would nullify one of the statutory provisions.
Independent Medical Examination (IME). Under section 39-71-605, MCA (1995), a claimant must submit from time to time to examination by a physician or panel selected by the and shall also submit from time to time to examination by a department-selected physician. Limiting IMEs to physicians selected by the department would nullify one of the statutory provisions.

         Pursuant to a request by counsel in this matter, the Court held a telephone conference with Mr. Steve M. Fletcher, attorney for petitioner, and Ms. Sarah R. Sexe, attorney for respondent. Counsel requested the Court to resolve a matter of statutory interpretation concerning independent medical examinations.

Respondent has noticed an IME of petitioner. It designated Dr. Rappaport of Big Timber to perform the examination. The sole dispute between the parties is whether the respondent can designate the IME examiner or whether only the Department of Labor and Industry can do so.

         In arguing that only the Department can designate the examiner, Mr. Fletcher points to subsection (2) of section 39-71-605, MCA, which provides that in the event of a "dispute concerning the physical condition of the claimant or the cause or causes of the injury," the Department, at the request of either the insurer or claimant, shall designate the examiner. Subsection (1), however, provides that the insurer may require a claimant to submit to an IME by a physician it designates. The two subsections read as follows:

39-71-605. Examination of employee by physician -- effect of refusal to submit to examination -- report and testimony of physician -- cost. (1) (a) Whenever in case of injury the right to compensation under this chapter would exist in favor of any employee, the employee shall, upon the written request of the insurer, submit from time to time to examination by a physician or panel of physicians, who must be provided and paid for by the insurer, and shall likewise submit to examination from time to time by any physician or panel of physicians selected by the department.
(b) The request or order for an examination must fix a time and place for the examination, with regard for the employee's convenience, physical condition, and ability to attend at the time and place that is as close to the employee's residence as is practical. The employee is entitled to have a physician present at any examination. If the employee, after written request, fails or refuses to submit to the examination or in any way obstructs the examination, the employee's right to compensation must be suspended and is subject to the provisions of 39-71-607. Any physician or panel of physicians employed by the insurer or the department who makes or is present at any examination may be required to testify as to the results of the examination.
(2) In the event of a dispute concerning the physical condition of a claimant or the cause or causes of the injury or disability, if any, the department, at the request of the claimant or insurer, as the case may be, shall require the claimant to submit to an examination as it considers desirable by a physician or panel of physicians within the state or elsewhere who have had adequate and substantial experience in the particular field of medicine concerned with the matters presented by the dispute. The physician or panel of physicians making the examination shall file a written report of findings with the claimant and insurer for their ...

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