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Neisinger v. New Hampshire Ins. Co.

Court of Workers Compensation of Montana

June 13, 2018

MICHAEL NEISINGER Appellant/Claimant
v.
NEW HAMPSHIRE INS. CO. Appellee/Insurer.

          ORDER REVERSING IN PART AND AFFIRMING IN PART ORDER DIRECTING A MEDICAL EXAMINATION

         Summary: 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.

         Held: 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.

         Issues

         ¶ 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?

         Procedural 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 existing litigation.[1]

         ¶ 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 quadriceps tendon.

         ¶ 5 New Hampshire accepted liability for Neisinger's leg injuries.

         ¶ 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 hospital.

         ¶ 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 Examination.

         ¶ 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 ...


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