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Carlson v. Montana State Fund

Court of Workers Compensation of Montana

June 20, 2019

COLLIN CARLSON Petitioner
v.
MONTANA STATE FUND Respondent/Insurer.

          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 ORDER

          DAVID M. SANDLER JUDGE

         Summary: 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.

         Held: 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.

         FACTS

         ¶ 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 diminished sensation.

         ¶ 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 conversion disorder.[1]

         ¶ 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 weeks.

         ¶ 6 Dr. Brandvold saw Carlson again on December 28, 2018. Dr. Brandvold noted:

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 us.

         ¶ 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 ...


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