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Kruzich v. Old Republic Insurance Co.

Court of Workers Compensation of Montana

March 10, 2005

HENRY KRUZICH Petitioner
v.
OLD REPUBLIC INSURANCE COMPANY Respondent/Insurer.

          Submitted: March 7, 2005

          ORDER DENYING MOTION FOR OUT-OF-STATE IME

          MIKE McCARTER JUDGE.

         Summary: Respondent insurer seeks an out-of-state medical examination of the claimant for purposes of determining whether his Parkinson's disease or syndrome is related to an industrial head injury.

         Held: The request for an out-of-state medical examination is denied where the claimant has been examined by three "highly qualified" Montana specialists and the insurer has failed to provide evidence indicating that actual physical examination and testing is necessary to the out-of-state physicians formulating opinions as to causation, or that, if further testing is necessary, the special expertise necessary to conduct such examination and testing is unavailable in Montana.

         Topics:

Independent Medical Examination: Generally. The Workers' Compensation Court will order a claimant to undergo an out-of-state medical examination only if the requested examination is reasonable and the medical expertise needed to address the medical issue at stake is unavailable in Montana or Montana physicians having the necessary expertise are unwilling to conduct the examination. § 39-71-605, MCA (2003).
Statutes and Statutory Interpretation. Where a statute is procedural rather than substantive, the version in effect at the time it is applied is applicable. Statutes governing medical examinations are procedural, thus the statute in effect at the time the Court is asked to order an examination applies in determining whether the examination will be ordered.
Constitutions, Statutes, Rules, and Regulations: Montana Code Annotated: 39-71-605, MCA (2003). Section 39-71-605, MCA (2003), authorizes the Workers' Compensation Court to order a claimant to undergo an out-of-state medical examination requested by an insurer. However, the request for examination must be reasonable; it must be necessary to the formulation of the designated physician's opinions; and the insurer must demonstrate that the out-of-state physician has expertise in doing the necessary examination and testing beyond what is available in Montana.

         ¶1 Respondent moves for an order compelling the petitioner to submit to an independent medical examination at the Mayo Clinic, which is located in Rochester, Minnesota. For the reasons set forth below, the motion is denied.

         Factual Background

         ¶2 The petitioner (claimant) suffered a head injury on August 16, 1988, while working for Blue Ridge Mining Limited. The respondent insured the claimant's employer at the time of the accident and accepted liability for his injury.

         ¶3 In 1994 the claimant and the respondent entered into a settlement agreement with respect to the claimant's future indemnity benefits. However, the agreement entitles the claimant to future medical benefits with respect to his industrial injuries.

         ¶4 A dispute has now arisen with respect to those medical benefits. The claimant has been diagnosed with Parkinson's syndrome or disease (Parkinsonism). Two Montana neurologists have opined that the claimant's Parkinsonism is related to his original head injury. A third Montana neurologist, who performed an independent medical examination (IME) at the request of the respondent, has opined that the Parkinsonism is idiopathic, i.e., of unknown cause, and not related to the claimant's original head injury. Based on the latter neurologist's opinion, the respondent has denied liability for medical expenses for the treatment of the claimant's Parkinsonism. The present petition seeking medical benefits ensued.

         ¶5 The respondent has requested the claimant submit to a second IME, this time at the Mayo Clinic. The claimant has refused the request. The respondent ...


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