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Neisinger v. New Hampshire Ins. Co.

Court of Workers Compensation of Montana

September 6, 2019

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

          Submitted: July 2, 2019

          ORDER AFFIRMING AND MODIFYING ORDER DIRECTING A MEDICAL EXAMINATION

          DAVID M. SANDLER, JUDGE.

         Summary: 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.

         Held: 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.

         Issues

         ¶ 2 This Court considers the following issues:

Issue 1: Did the DLI err in requiring Neisinger to attend a two-day IME?
Issue 2: Did the DLI err in not requiring Dr. Stratford to disclose all raw data and testing materials from the IME?

         Procedural 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 one.[1]

         ¶ 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 psychologist.[2]

         ¶ 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 ramifications."

         ¶ 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 Dr. Stratford.

         ¶ 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 ...

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