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Heffernan v. Safety National Casualty Corp.

Court of Workers Compensation of Montana

November 3, 2017

CATHERINE HEFFERNAN Appellant/Claimant
v.
SAFETY NATIONAL CASUALTY CORP. Appellee/Insurer.

          Submitted: October 27, 2017

         Summary: Claimant appeals an Amended Order Directing Medical Examination, in which the DLI ordered her to attend a panel IME. Claimant argues that the DLI erred because: (1) it declined her request to allow her to make an audio recording of the history portion of her examination; (2) it did not require the IME provider to send a copy of its report directly to her, despite the provider's policy not to do so being in violation of § 39-71-605(2), MCA; and (3) it directed her to attend a panel IME, which she contends is three IMEs, without good cause for "multiple" IMEs.

         Held: The Amended Order Directing Medical Examination is affirmed in part and modified in part. The DLI correctly determined that claimant did not have good cause to make an audio recording of the history portion of her examination. The DLI also correctly determined that good cause exists for a panel IME, which is not "multiple" IMEs. However, Claimant is correct that she has a statutory right to a copy of the IME report directly from the IME provider. Thus, the DLI's order is modified to require the IME provider to provide its report directly to Claimant at the same time it provides it to the Insurer. The Insurer is ordered to file a written declaration from the IME provider that the provider will provide its report directly to Claimant.

          ORDER AFFIRMING IN PART AND MODIFYING IN PART DEPARTMENT OF LABOR AND INDUSTRY'S AMENDED ORDER DIRECTING MEDICAL EXAMINATION

          DAVID M. SANDLER, JUDGE

         ¶ 1 Claimant Catherine Heffernan appeals the Department of Labor and Industry's (DLI) Amended Order Directing Medical Examination, made pursuant to § 39-71-605(2), MCA. Heffernan argues that the DLI erred in ordering her to undergo a panel independent medical examination (IME) upon the application of Insurer Safety National Casualty Corp. (Safety National). This Court affirms in part and modifies in part the DLI's order.

         Facts

         ¶ 2 Pursuant to the parties' agreement during the telephone conference on October 24, 2017, this Court considers the following facts from the DLI's record and from the Exhibits the parties attached to their briefs on appeal. However, this Court has not considered the Mediator's Report and Recommendation, which Safety National submitted after the telephone conference, as it is confidential and inadmissible.[1]

         ¶ 3 Heffernan worked as a dog groomer at Petco.

         ¶ 4 On October 27, 2016, Heffernan saw Michael T. Hall, PA-C, with complaints of tingling in her hands, left greater than right, ongoing for two to three months. Hall put her on a trial of B vitamins, and stated the next step would be a nerve conduction study.

         ¶ 5 On February 2, 2017, Heffernan returned to Hall. Hall documented that Heffernan had a horseback riding accident, which resulted in a low-back surgery in 2004. Because Heffernan was still experiencing numbness and tingling in her fingers, Hall recommended a nerve conduction study.

         ¶ 6 William E. Henning, DO, performed the nerve conduction study on March 28, 2017. Dr. Henning concluded the study was "[n]ormal, " and did "not reveal findings of left upper extremity focal neuropathy or of left cervical radiculopathy."

         ¶ 7 On May 3, 2017, Heffernan reported to the emergency room (ER) with complaints of paresthesias, leg weakness, a "burning dysesthesia of her LEFT arm into her neck, " mild to moderate neck pain, and weakness in her left upper extremity. The ER called in Benny E. Brandvold, MD, a neurosurgeon. Dr. Brandvold noted, "Over the last week she began to develop dysesthesias down both arms from her neck. This morning she awoke and her legs were wobbly, and she was brought to the emergency room for evaluation." Dr. Brandvold noted that an MRI showed a "massive C6-7 disk herniation." Upon Dr. Brandvold's recommendation, Heffernan underwent emergency surgery.

         ¶ 8 Heffernan has filed a First Report of Injury/Occupational Disease. She contends that she has a compensable occupational disease caused by her work at Petco. According to Heffernan, Safety National "accepted Heffernan's claim as a bilateral upper extremity condition, but denied Heffernan's cervical spine condition. [Safety National] paid for some medical treatment related to Heffernan's bilateral upper extremity condition, but denied payment of all treatment related to Heffernan's cervical spine."

         ¶ 9 Safety National twice applied to the DLI for an order directing Heffernan to attend an IME. In its second request, Safety National applied for an order directing Heffernan to attend a panel IME with a neurologist, an orthopedist, and an ...


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