ORDER REVERSING IN PART AND AFFIRMING IN PART ORDER
DIRECTING A MEDICAL EXAMINATION
Claimant appeals an Order from the DLI directing him to
attend a § 39-71-605, MCA, examination with a
psychiatrist and an orthopedist. Claimant asserts that the
DLI did not have jurisdiction to order him to attend an IME.
Claimant also asserts that Insurer, which has not authorized
him to see a treating psychiatrist or psychologist, is
"stacking its deck" with "hired guns, "
and that Insurer does not have good cause for multiple IMEs.
Insurer asserts that the DLI correctly ordered the
examination with the psychiatrist because one of
Claimant's treating physicians referred him to a
psychiatrist or psychologist. Insurer also asserts that the
DLI correctly ordered the examination with the orthopedist
because Claimant's condition has changed.
The DLI's order is reversed in part and affirmed in part.
The DLI had jurisdiction. However, Insurer does not currently
have good cause for an IME with the psychiatrist. Because of
the potential for bias, an insurer may not force a claimant
to attend an IME with a psychiatrist of its choosing, who
will provide no treatment. To balance a claimant's rights
with an insurer's rights, the insurer must first
authorize a treating psychiatrist or psychologist. Insurer
has good cause for an IME with the orthopedist because
Claimant's condition has arguably changed, the previous
IME was two years ago, and Claimant's treating physicians
can comment on the IME physician's opinions.
1 Appellant/Claimant Michael Neisinger appeals the Department
of Labor and Industry's (DLI) Order Directing Medical
Examination, which it made pursuant to § 39-71-605, MCA.
The DLI ordered Neisinger to attend an examination by William
D. Stratford, MD, a psychiatrist, and Mark Rotar, MD, an
orthopedist. Appellee/Insurer New Hampshire Ins. Co. (New
Hampshire) asserts that the DLI correctly ordered the
examination. Neither party requested a hearing.
2 This Court considers the following issues:
Issue 1: Did the DLI have jurisdiction to order Neisinger to
attend the § 39-71-605, MCA, examination?
Issue 2: Did the DLI err in ordering Neisinger to attend the
§ 39-71-605, MCA, examination?
History and Facts
3 The following facts are from the DLI's record, the
exhibits the parties attached to their briefs, to which
neither party objected, and this Court's file in the
4 On May 27, 2015, Neisinger was injured in the course of his
employment when a high-pressure stream of water hit his left
thigh and knocked him off a platform. Neisinger suffered
several injuries to his left leg, including a rupture of his
5 New Hampshire accepted liability for Neisinger's leg
6 For his leg injuries, Neisinger treated with John Ortiz,
MD, and James Elliot, MD.
7 Neisinger asserts that he also injured his low back in the
accident. New Hampshire has denied liability for his low-back
injury. Consequently, Neisinger filed a Petition for Hearing.
The trial in that case is scheduled for July 11, 2018.
8 On June 15, 2016, Neisinger underwent an independent
medical evaluation (IME) with Joseph M. Erpelding, MD, an
orthopedist. Dr. Erpelding determined that Neisinger was at
maximum medical improvement (MMI) for his leg injuries and
assigned a 5% whole person impairment rating. Dr. Erpelding
opined that Neisinger should limit his use of stairs and
ladders to no more than 5% of his work and should be afforded
rest periods after using stairs and ladders.
9 On August 18, 2016, Dr. Elliot agreed with Dr.
Erpelding's opinions that Neisinger had reached MMI. Dr.
Elliot also agreed with Dr. Erpelding's assessment that
Neisinger should limit his use of stairs and ladders and
added that Neisinger should avoid squatting.
10 Neisinger returned to Dr. Elliot on October 26, 2017, with
an increase in left-knee pain. Dr. Elliot noted that
Neisinger had had knee pain since his injury, and that
Neisinger had a recent event at a grocery store in which his
knee gave out, resulting in severe pain. Dr. Elliot did not
appreciate any additional injury and assessed: "Ongoing
injury associated with his left knee with a sense of giving
way." Dr. Elliot thought that in addition to medication
to control pain, Neisinger should complete a course of
physical therapy. Dr. Elliot also referred him to S. Dante
Oriente, MD, a pain management specialist.
11 Neisinger saw Dr. Oriente on February 8, 2018. Dr. Oriente
assessed Neisinger with "chronic left knee pain status
post left quadriceps surgical repair and chronic low back
pain radiation down left leg greater than right."
Because Neisinger also complained of anxiety disorder with
sleep disturbance, Dr. Oriente referred Neisinger to a
psychiatrist or psychologist.
12 In response, New Hampshire did not authorize Neisinger to
see a treating psychiatrist or psychologist. Instead, on
February 12, 2018, New Hampshire scheduled a panel IME with
Spencer Greendyke, MD, an orthopedist, and Dr. Stratford, a
psychiatrist, to take place in Great Falls on March 16, 2018.
13 On February 16, 2018, Neisinger notified New Hampshire
that he would not attend the panel IME, asserting that it did
not have good cause for a second IME, and because Dr.
Greendyke does not have admitting privileges in any Montana
14 New Hampshire requested an order from the DLI under §
39-71-605, MCA, directing Neisinger to attend an IME with Dr.
Greendyke and Dr. Stratford.
15 Neisinger objected to the IME for several reasons,
including that Dr. Greendyke is from Idaho and does not have
admitting privileges at any hospital in Montana and that New
Hampshire did not set forth the time and place for the
examination, as required by § 39-71-605(1), MCA.
16 New Hampshire cancelled the IME. Thus, on March 19, 2018,
the DLI issued an Order Denying Request for Medical
17 On March 21, 2018, New Hampshire scheduled an IME with Dr.
Stratford and Dr. Rotar, an orthopedist, for April 13, 2018.
18 On March 23, 2018, New Hampshire requested that the DLI
order Neisinger to attend the scheduled IME with Dr.
Stratford and Dr. Rotar.
19 On March 27, 2018, the DLI issued its Order Directing
Medical Examination, directing Neisinger to attend an
examination by Dr. Stratford and Dr. Rotar. The DLI's
order states, "Upon a thorough review of the information
submitted on the claimant, the Department concludes the
claimant should be examined by a physician for a diagnostic
update of ...