Submitted: June 10, 2019
ORDER DENYING RESPONDENT'S MOTION TO COMPEL
ATTENDANCE AT AN INDEPENDENT MEDICAL EXAMINATION AND ORDER
DENYING RESPONDENT'S REQUEST TO VACATE THE SCHEDULING
M. SANDLER JUDGE
Respondent has not scheduled an examination under §
39-71-605, MCA, nor identified the physician who will conduct
the examination should it be scheduled. However, Respondent
seeks an order compelling Petitioner to attend such an
examination whenever it schedules it. Respondent also
requests this Court to vacate the current Scheduling Order so
it has more time to schedule the examination.
This Court denies Respondent's Motion to Compel. The
plain language of § 39-71-605(1)(b), MCA, provides that
this Court must set forth the time and place of the
examination. Moreover, this Court has previously held that
the insurer must notify the claimant of the identity of the
examiner, the examiner's area of expertise, and the
nature of the examination so the claimant can intelligently
assess whether to object to the examination. Thus, this Court
cannot issue a general order compelling a claimant to attend
an examination when the information about the proposed
examination is unknown. This Court also denies
Respondent's request to vacate the current Scheduling
Order because it has not set forth good cause to do so.
1 Respondent Montana State Fund (State Fund) moves to compel
Petitioner Collin Carlson to attend an independent medical
examination (IME) under § 39-71-605, MCA, at some time
in the future. Because trial in this matter is in six weeks,
Respondent asks this Court to vacate the current Scheduling
Order so it has more time to schedule the examination.
Carlson opposes State Fund's motions.
2 Carlson asserts that he suffered a compensable injury on
December 21, 2018. Carlson alleges that he fell and
thereafter suffered bilateral lower extremity weakness and
3 On December 22, 2018, Carlson saw Benny E. Brandvold, MD, a
neurosurgeon. Dr. Brandvold noted no neurosurgical
explanation for Carlson's neurologic deficit. Dr.
Brandvold thought that a differential diagnosis was
4 On December 23, 2018, Carlson saw Aaron Flanagan, MD. Dr.
Flanagan diagnosed "paraplegia secondary to spinal cord
injury without radiologic abnormality (SCIWORA) injury."
Dr. Flanagan also diagnosed a concussion and a soft tissue
injury to Carlson's low- and mid-back. Dr. Flanagan
thought that Carlson would likely make a "significant
recovery," though informed Carlson that the recovery
time for a SCIWORA injury was "variable."
5 Dr. Flanagan saw Carlson again on December 26, 2018.
Carlson had improved function in his legs. Dr. Flanagan
recommended inpatient rehabilitation for approximately two
6 Dr. Brandvold saw Carlson again on December 28, 2018. Dr.
The patient reports he is demonstrating some improvement,
though his neurologic status is still relatively profound
given his normal MRIs on two occasions. In general, most cord
injuries would be identified on a delayed MRI. Again, I have
no anatomic explanation for his lower extremity weakness. As
I had recommended in the past, I feel he would be best suited
by a formal assessment by a neurologist who is
board-certified in both Neurology and Psychiatry by
definition. I concurred that he should go to rehab with
aggressive therapy to get his function returned regardless of
his underlying diagnosis. From a neurosurgical standpoint,
there is no operative lesion and we will sign off at this
time. If neurosurgical questions arise, feel free to contact
7 Also, on December 28, 2018, Carlson saw Jamal A. Balouch,
DO. Dr. Balouch determined, "exact etiology unknown but
differential diagnosis could include spinal cord injury
without radiographic abnormality versus conversion
disorder." Dr. Balouch thought that Carlson should be
evaluated for "possible conversion disorder."
8 On January 2, 2019, Carlson saw Stephanie Burcusa, PhD, a
psychologist, to "set the expectation for continued
recovery, to encourage continued participation in therapies,
and to build rapport in case further psychological
intervention is needed during this rehab stay." Dr.
Burcusa met with Carlson again on January 4, 7, and 10, 2019.
Her notes state that she was seeing Carlson "to address
adjustment/coping and engagement in rehab therapies."
9 On January 25, 2019, State Fund denied liability for
Carlson's claim, asserting that that Carlson and his
attorney had not provided necessary information.
10 On January 30, 2019, State Fund notified Carlson that it
was going to schedule a neuropsychological ...