Submitted: July 2, 2019
ORDER AFFIRMING AND MODIFYING ORDER DIRECTING A
M. SANDLER, JUDGE.
Claimant appeals an Order from the DLI directing him to
attend a two-day § 39-71-605, MCA, examination with a
psychiatrist. Claimant asserts that this Court should affirm
the Order but modify it to limit the IME to a single day and
require the psychiatrist to disclose all raw data and testing
materials related to his evaluation of Claimant. Claimant
argues that since Insurer previously scheduled him to attend
several one-day panel IMEs with the same psychiatrist, it is
clear the psychiatrist can obtain all the information he
needs in a single day. Claimant further argues that, to
protect his ability to challenge the psychiatrist's
opinions and cross-examine him at trial, he must have access
to the raw data and testing materials related to the IME.
Insurer asserts that this Court should affirm the Order as
is. Insurer argues that a two-day IME is appropriate because
Claimant has not presented any medical evidence that he is
limited to a one-day evaluation, and because a single day
with 15-minute breaks every hour is not enough time for the
psychiatrist to administer the necessary standardized tests
and conduct an interview and evaluation based on the testing
responses. Insurer further argues that the psychiatrist is
willing to produce all raw data and testing materials
concerning his evaluation of Claimant, but, due to licensing
agreements, cannot do so without a court order.
The DLI's Order directing Claimant to attend a two-day
IME is affirmed but modified to require the psychiatrist to
disclose all raw data and testing materials related to his
evaluation of Claimant when he issues his report. Insurer has
presented evidence that the psychiatrist requires two days to
both accommodate Claimant's demand for a 15-minute break
every hour and complete the necessary testing, interview, and
evaluation. The DLI should have addressed Claimant's
request for the raw data and testing materials related to his
IME. The failure to do so amounts to a denial which
prejudices Claimant's substantial rights. Indeed, both
parties need the raw data and testing materials concerning
the psychiatrist's evaluation of Claimant to properly
consider his 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 Order requires Neisinger to attend a two-day independent
medical examination (IME) with William D. Stratford, MD, a
psychiatrist. Appellee/Insurer New Hampshire Ins. Co. (New
Hampshire) requests that this Court uphold the Order. Neither
party requested a hearing.
2 This Court considers the following issues:
Issue 1: Did the DLI err in requiring Neisinger to attend a
Issue 2: Did the DLI err in not requiring Dr. Stratford to
disclose all raw data and testing materials from the IME?
History and Facts
3 On June 13, 2018, this Court issued an Order Reversing in
Part and Affirming in Part Order Directing A Medical
Examination (2018 Order) in an earlier case filed by
Neisinger arising from the same industrial injury as this
4 In the 2018 Order, this Court held that New Hampshire did
not have good cause for an IME with Dr. Stratford, and that
it was required first to authorize a treating psychiatrist or
5 New Hampshire's appeal of the 2018 Order is currently
pending before the Montana Supreme Court. However, both this
Court and the Supreme Court denied New Hampshire's Motion
to Stay the examination with a treating psychologist.
6 Subsequently, New Hampshire authorized Neisinger to see
James P. Murphey, PhD, a Licensed Clinical Psychologist.
7 After an evaluation, including clinical interview and
psychological testing in early 2019, Dr. Murphey determined
that Neisinger is suffering from Post-Traumatic Stress
Disorder, Major Depression, and Generalized Anxiety Disorder,
"all of which directly stem from the industrial accident
he had in late May, 2015, as well as its physical
8 Dr. Murphey strongly recommended that Neisinger obtain both
psychopharmacological medication and psychotherapy.
9 Instead, on March 18, 2019, New Hampshire advised Neisinger
by letter that it had scheduled him for a two-day IME with
10 On April 12, 2019, counsel for Neisinger responded that,
due to his painful back condition, for which he was still
awaiting surgery, Neisinger would only be available for a
one-day IME, and only if he would not be required to sit for
more than 30 minutes at a time and be provided a 15-minute
break each hour.
11 Neisinger further advised that he required confirmation,
in advance of the IME, that New Hampshire would produce all
of the information it was going to provide to Dr. Stratford,
and that Dr. Stratford would produce his report to both
parties simultaneously, as well as all raw data and testing
materials from the IME.
12 On April 19, 2019, New Hampshire sought an Order from the
DLI compelling Neisinger to attend the two-day IME.
13 In its letter to the Hearing Officer, counsel for New
Hampshire indicates that Dr. Stratford could accommodate
Neisinger's demands that he not be required to sit for
more than 30 minutes at a time, that he be provided a
15-minute break each hour, and that he be sent the IME report
at the same time as New Hampshire.
14 The letter states, however, that Dr. Stratford could not
complete the necessary testing, interview, and evaluation of
the testing responses within a single day and is prohibited
from disclosing the raw data and testing materials from the
IME by various licensing agreements.
15 On April 24, 2019, Neisinger provided the Hearing Officer
with a response; the letter indicates that Neisinger does not
believe he could perform a two-day IME given his physical
condition, and questions why Dr. Stratford requires two days
when several previous panel IMEs New Hampshire scheduled
Neisinger to attend with Dr. Stratford would have taken only
one, and when Dr. Murphey was able to complete his testing
and evaluation of Neisinger in only 4½ hours.
16 On April 26, 2019, the DLI issued its Order Directing
Medical Examination, which states, in pertinent part:
The Department finds the Insurer has fulfilled their duty,
outlined in MCA 39-71-605, to consider the physical condition
of the Claimant as they have agreed to accommodate several
modifications to address the [C]laimant's concerns.
Considering the [C]laimant has not provided any medical
evidence to support that he can only sit for a one day IME
and Dr. Stratford's opinion that a one day restriction
would invalidate the required ...