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Summers v. Liberty Northwest Insurance Corp.

Court of Workers Compensation of Montana

May 1, 2017

RICHARD WAYNE SUMMERS, Petitioner
v.
LIBERTY NORTHWEST INSURANCE CORP., Respondent/Insurer.

          Submitted: April 21, 2017

          ORDER DENYING PETITIONER'S MOTION FOR DECLARATORY RULING

          DAVID M. SANDLER JUDGE

         Summary: Petitioner moves this Court to declare that Respondent is not entitled to an IME in this matter on the grounds that a medical records review which Respondent obtained constitutes an "IME" under § 39-71-605, MCA, and that Respondent has no good cause to obtain a second IME. Respondent objects to Petitioner's motion, contending that a records review is not an "IME" under the statute and arguing that it has good cause for an IME where there is a dispute as to the work-relatedness of Petitioner's carpal tunnel syndrome.

         Held: Petitioner's motion is denied. This Court has previously ruled that a medical records review is not an IME, and the language of § 39-71-605, MCA, clearly contemplates a physical examination. Where causation is disputed, Respondent desires the IME for the purpose of obtaining a causation opinion, and Respondent has not previously obtained an IME, Respondent has demonstrated good cause.

         ¶ 1 Petitioner Richard Wayne Summers moves this Court for a ruling declaring that Respondent Liberty Northwest Insurance Corp. (Liberty) is not entitled to an independent medical examination (IME) in this matter. Liberty opposes Summers' motion.

         Facts and Procedural History

         ¶ 2 On August 4, 2016, Summers filed an occupational disease claim, alleging that he developed bilateral carpal tunnel syndrome in the course of his employment as a truck driver for Selway Corporation.

         ¶ 3 On September 12, 2016, Liberty's claims adjuster Sandy Scholl informed Summers that pursuant to § 39-71-615, MCA, [1] Liberty would pay his medical bills without accepting liability at that time.

         ¶ 4 On September 14, 2016, Timothy Woods, MD, saw Summers for a "work related claim of bilateral carpal tunnel syndrome."

         ¶ 5 On September 29, 2016, electrodiagnostic testing confirmed Dr. Woods' diagnosis of bilateral carpal tunnel syndrome.

         ¶ 6 On October 4, 2016, Margaret Cook-Shimanek, MD, MPH, issued a Report of Medical Record and Literature Review pursuant to Scholl's request. Dr. Cook-Shimanek did not physically examine Summers. She reviewed Dr. Woods' September 14, 2016, medical record and investigated whether existing medical literature supported Summers' claim that his truck-driving job caused his carpal tunnel syndrome. Dr. Cook-Shimanek found "a paucity of literature specifically addressing truck driving as a risk factor, " and further noted that additional information about Summers' medical history and a description of his time-of-injury job would be helpful in determining if his carpal tunnel syndrome was work-related.

         ¶ 7 On October 20, 2016, Scholl wrote to Dr. Woods and posed questions about whether Summers' carpal tunnel syndrome was work-related. Among other questions, Scholl asked Dr. Woods if he could state, with a reasonable degree of medical probability, that a causal relationship exists between Summers' employment and his carpal tunnel syndrome. Dr. Woods responded that he could not so state. Scholl used Dr. Woods' responses to justify denying liability for Summers' claim on November 4, 2016.

         ¶ 8 On December 21, 2016, Summers' counsel wrote to Dr. Woods and asked him to render opinions as to whether Summers' carpal tunnel syndrome was work-related. After Dr. Woods responded that it was, Liberty asked Summers to attend an IME with Emily Heid, MD. Summers refused to attend on the grounds that Dr. Cook-Shimanek's records review constituted ...


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