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Ross v. Victory Insurance Co., Inc.

Court of Workers Compensation of Montana

September 21, 2017

JODY ROSS Appellant/Claimant
v.
VICTORY INSURANCE CO., INC. Appellee/Insurer.

          Submitted: July 24, 2017

          ORDER REVERSING ORDER DIRECTING MEDICAL EXAMINATION

          DAVID M. SANDLER, JUDGE

         Summary: Claimant appeals an Order Directing Medical Examination, in which the DLI ordered her to attend a second IME with the insurer's chosen psychologist for the purpose of obtaining a neuropsychological evaluation to determine if she is a candidate for a spinal cord stimulator.

         Held: The Order Directing Medical Examination is reversed. The Workers'

         Compensation Act does not allow an insurer to designate a psychologist to be both its independent medical examiner under § 39-71-605, MCA, and the consulting psychologist for claimant's treating physician under § 39-71-1101, MCA. At this time, the insurer has not established good cause for a second IME with its designated psychologist because claimant has not first undergone an evaluation with the treating physician's chosen psychologist.

         ¶ 1 Claimant Jody Ross appeals the Department of Labor and Industry's (DLI) Order

         Directing Medical Examination, made pursuant to § 39-71-605(2), MCA. Without explaining the reasoning for its decision, the DLI ordered Ross to attend a second independent medical examination (IME) with John Harrison, PhD, for the purpose of obtaining a neuropsychological evaluation to determine if Ross is a candidate for a spinal cord stimulator. This Court reverses the DLI's Order Directing Medical Examination.

         Facts

         ¶ 2 The following facts are from the DLI's record, [1] statements of uncontested facts from the parties' briefs, and from the Exhibits the parties attached to their briefs on appeal.[2]

         ¶ 3 On April 10, 2013, Ross suffered shoulder and neck injuries in the course and scope of her employment. Victory accepted liability for her claim.

         ¶ 4 Ross treated with Kenneth Brewington, MD, who performed neck surgery on

         August 26, 2013. Because Ross continued to have shoulder pain, she treated with Larry Stayner, MD, who surgically repaired her left shoulder in September 2014. Dr. Stayner noted symptoms of complex regional pain syndrome (CRPS). Thus, Dr. Stayner referred Ross to Steve C. Kemple, DO, a pain specialist. Since the spring of 2014, Dr. Kemple has been Ross's treating physician for CRPS.

         ¶ 5 On May 11, 2015, Ross underwent an IME with John Schumpert, MD. Dr. Schumpert does not think Ross has CRPS. Instead, Dr. Schumpert believes Ross has somatic complaints.

         ¶ 6 On June 22, 2015, Dr. Stayner stated that while he agreed with Dr. Schumpert's opinion that Ross was at maximum medical improvement for her neck and shoulder injuries, he disagreed with Dr. Schumpert's opinions that Ross does not have CRPS and that her complaints are somatic. Dr. Stayner stated Ross clearly had signs of CRPS on her examinations.

         ¶ 7 In September 2015, Dr. Kemple considered a spinal cord stimulator for Ross and requested she undergo a neuropsychological evaluation with psychologist Terry Reed, PhD. Victory denied Dr. Kemple's request for a neuropsychological evaluation with Dr. Reed. Instead, Victory scheduled a neuropsychological IME with John R. Harrison, PhD.

         ¶ 8 Dr. Harrison conducted his IME on November 17, 2015. Dr. Harrison concluded that Ross has somatic complaints and was not then a candidate for a spinal cord stimulator. Dr. Harrison recommended additional counseling.

         ¶ 9 On January 8, 2016, Dr. Kemple agreed that Dr. Harrison's IME satisfied his request for a neuropsychological evaluation.

         ¶ 10 Ross underwent the counseling Dr. Harrison recommended.

         ¶ 11 On March 8, 2017, Dr. Kemple issued a Medical Status Form in which he stated his treatment plan for Ross included a ...


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