Submitted: October 27, 2017
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.
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
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.
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
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
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
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