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Broyles v. Albertson's, Inc.

Court of Workers Compensation of Montana

October 20, 2003

LEON WADE BROYLES Petitioner
v.
ALBERTSON'S, INCORPORATED Respondent/Insurer.

          Submitted: October 20, 2003

          DECISION AND ORDER QUASHING IME AND FCE

          MIKE McCARTER JUDGE

         Summary: Self-insured employer was dissatisfied with 5% impairment rating rendered by the treating physician following surgery and sought an Independent Medical Examination (IME) and Functional Capacities Evaluation (FCE). The claimant petitioned the Court to quash the IME and FCE and for a 5% impairment award.

         Held: An insurer or self-insured employer is not entitled to an IME or FCE for the purposes of obtaining an impairment award, §§ 39-71-605(5) and -711(4), MCA (2001), therefore the IME and FCE notices are quashed.

         Topics:

Independent Medical Examination: Impairment Rating. Insurer or self-insured employer is not entitled to an IME or FCE for the purposes of obtaining an impairment rating. §§ 39-71-605(5) and -711(4), MCA (2001).
Independent Medical Examination: FCE. Insurer or self-insured employer is not entitled to an IME or FCE for the purposes of obtaining an impairment rating. §§ 39-71-605(5) and -711(4), MCA (2001).
Constitutions, Statutes, Rules and Regulations: Montana Code Annotated: 39-71-605 (2001). Subsection (5) of section 39-71-605, MCA (2001), precludes an insurer or self-insured employer from obtaining either an IME or FCE for the purposes of obtaining an impairment rating.
Constitutions, Statutes, Rules and Regulations: Montana Code Annotated: 39-71-711 (2001). Subsection (4) of section 39-71-711, MCA (2001), precludes an insurer or self-insured employer from obtaining either an IME or FCE for the purposes of obtaining an impairment rating.
Benefits: Impairment Awards. Insurer or self-insured employer is not entitled to an IME or FCE for purposes of an impairment rating. §§ 39-71-605(5) and -711(4), MCA (2001).

          ¶1 Claimant in this cause injured his right shoulder at work on October 8, 2002. (Petition for Hearing, ¶ 1.) The documents and briefs filed in this case indicate that liability was accepted by the respondent, which is self-insured under Plan I of the Workers' Compensation Act, and that benefits have been paid.

         ¶2 However, a dispute has arisen over an impairment rating rendered by Dr. James H. Chandler with respect to the claimant's shoulder injury. Dr. Chandler is a surgeon and performed surgery on claimant's shoulder. Following the surgery, the doctor rendered an impairment rating of 5% of the whole person based on "a residuum of ongoing pain in-and-about the operate area of mild to moderate severity, which has affected his residual strength in the right arm and proximal limb girdle." (Ex. A to Response to Petitioner's Motion to Quash.)

         ¶3 Albertson's was dissatisfied with the basis for the rating. Citing subsection (1)(d) of section 39-71-711, MCA (2001), which requires that an impairment rating "must be established by objective medical findings," the insurer wrote to Dr. Chandler advising him of the requirement of "objective medical findings" and asking him to "re-evaluate the impairment rating provided to Mr. Broyles and advise if the impairment rating will changed [sic] and what objective medical findings the impairment rating is based on." (Ex. C to Response to Petitioner's Motion to Quash.) Dr. Chandler replied that his impairment rating was unchanged and pointed out that the Fifth Edition Guides to Evaluation of Permanent Impairment "allow me to rate a residuum relevant to pain." (Ex. D to Response to Petitioner's Motion to Quash.)

         ¶4 Not satisfied by the reply, the insurer scheduled claimant for a Functional Capacities Evaluation (FCE) and an Independent Medical Examination (IME). Claimant then filed the present petition requesting ...


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