Submitted: May 6, 2005
ORDER DENYING REQUEST FOR OUT-OF-STATE IME
The respondent insurer applied to the Court for an order
directing the petitioner to submit to an out-of-state
independent medical examination.
The request is denied because it is untimely. The information
provided to the Court is in any event insufficient to
persuade the Court to order an out-of-state IME.
Independent Medical Examinations:
Out-of-State. Where an out-of-state independent
medical examination is requested, the requesting party must
satisfy the Court that an out-of-state examination is both
reasonable and necessary. Kruzich v. Old Republic Ins.
Co., 2005 MTWCC 12, ¶ 7.
Independent Medical Examinations:
Out-of-State. Where an order for an out-of-state
independent medical examination is requested, the requester
should provide the Court with information showing the special
expertise of the proposed examiner and how that expertise is
related and important to the medical issues in the case.
Second, the requester should address why it is necessary to
employ an out-of-state rather than an in-state examiner. If
there are other Montana physicians with the same speciality,
e.g., board-certified neurologists, then the requester should
explain any additional expertise or qualifications the
proposed examiner has that makes the proposed examiner more
qualified to address the medical issues in the case than
Montana specialists or why the requester has been unable to
secure a satisfactory in-state examiner. Third, the requester
should provide a short statement from the proposed examiner
indicating why an actual physical examination, as opposed to
a records review, is necessary for him or her to formulate
his or her opinions. Fourth, and finally, the requester
should provide information as to the proposed examiner's
prior experience as an expert witness. This latter
information is to enable the Court to determine whether the
proposed examiner is impartial. Simms v. Montana
Eighteenth Judicial Dist. Court, 2003 MT 89, ¶ 33,
315 Mont. 135, 68 P.3d 678.
The matter before the Court is the Montana State Fund's
(State Fund) request that the Court order petitioner, Gerald
Mack (claimant), to undergo an out-of-state independent
medical examination (IME) by Dr. Richard E. Kanner, a
pulmonologist practicing in Utah. The State Fund has provided
the Court with Dr. Kanner's Curriculum Vitae (CV), which
is impressive. He is a professor of medicine at the
University of Utah School of Medicine and has numerous
professional journal articles, books, and textbook chapters
to his credit.
By agreement of counsel, the request was presented informally
and was addressed in a telephone conference I had with them
on May 6, 2005. However, because my analysis may provide
further guidance regarding out-of-state IMEs, I agreed to put
that analysis to pen and paper and publish it.
According to the petition, the claimant suffers from a
pulmonary condition caused or aggravated by his work at Noel
Farms Incorporated (Noel Farms). He has been examined by two
Montana physicians, one designated by the Department of Labor
and Industry. The two physicians disagree as to whether the
claimant's employment is the cause of his current
pulmonary conditions. State Fund, which insured Noel Farms,
has denied liability based on the one physician's opinion
that claimant's condition is not an occupational disease.
The petition was set for trial on an emergency basis. A trial
date of March 31, 2005, was fixed. Lists of witnesses and
witness summaries, including summaries for expert witnesses,
were due February 11, 2005. A pretrial conference was
scheduled for March 14, 2005.
A draft of a proposed pretrial order was submitted prior to
the pretrial conference, which was held on March 14, 2005. On
March 15, 2005, the claimant's counsel proposed that the
parties attempt to settle the case by participating in a
settlement conference with the Court's settlement master.
Instead of going to trial on March 31st, they
agreed to hold the settlement conference on that day.
A settlement conference took place but no settlement was
reached. On the day after the settlement conference, the
claimant's counsel requested that the trial be reset on
an expedited basis. After conferring with counsel, ...