Submitted on Briefs: March 20, 2019
FROM: Montana Workers' Compensation Court, WCC No.
2017-4143 Honorable David M. Sandler, Presiding Judge
Appellant: Kelly M. Wills, Carrie L. Garber, Shea A.B.
Sammons, Wills Law Firm, PC, Missoula, Montana
Appellee: Thomas J. Murphy, Murphy Law Firm, Great Falls,
Amicus Montana State Fund: Kevin Braun, Nick Mazanec, Special
Assistant Attorneys General, Montana State Fund, Helena,
Amici Montana Municipal Interlocal Authority and Montana
Schools Group Insurance Authority: Oliver H. Goe, Leo S.
Ward, Kasey R. Kimball, Browning, Kaleczyc, Berry &
Hoven, P.C., Helena, Montana
JEREMIAH SHEA JUSTICE
New Hampshire Insurance Company (New Hampshire) appeals from
an Order of the Workers' Compensation Court (WCC)
reversing in part and affirming in part the Montana
Department of Labor and Industry (DLI) Order Directing
We address the following issues:
Issue One: Whether Neisinger's complaints of anxiety
and insomnia provide a basis to require a psychiatric
examination pursuant to § 39-71-605, MCA, before it is
established that the complaints are related to his
workers' compensation claim.
Issue Two: Whether New Hampshire must authorize Neisinger
to see a psychiatrist or psychologist who will evaluate him
and provide treatment if necessary before it can obtain a
psychiatric examination pursuant to § 39-71-605,
We affirm in part, reverse in part, and remand for further
proceedings consistent with this Opinion.
AND FACTUAL BACKGROUND
On May 27, 2015, Michael 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.
New Hampshire provides workers' compensation insurance
for Neisinger's employer. New Hampshire accepted
liability for Neisinger's left leg injury. Neisinger
sought treatment for his injury with Dr. John Ortiz and Dr.
On June 15, 2016, Neisinger underwent a medical examination
pursuant to § 39-71-605, MCA, (§ 605 exam) with Dr.
Joseph Erpelding, an orthopedist retained by New Hampshire.
Dr. Erpelding determined that Neisinger was at maximum
medical improvement (MMI) for his leg injuries and assigned a
five percent whole person impairment rating. On August 18,
2016, Dr. Elliot agreed with Dr. Erpelding's opinion that
Neisinger had reached MMI and that Neisinger should limit his
use of stairs and ladders and should avoid squatting.
On October 26, 2017, Neisinger returned to Dr. Elliot and
reported an increase in left knee pain. Dr. Elliot noted that
(1) Neisinger presented with knee pain since his leg surgery,
and (2) Neisinger had a recent event at a grocery store where
his knee gave out, resulting in severe pain. Dr. Elliot
concluded Neisinger needed additional medication to control
his pain and referred Neisinger to Dr. S. Dante Oriente, a
pain management specialist. Dr. Elliot requested
pre-authorization for Neisinger to be seen by a pain
management doctor. New Hampshire authorized the referral to a
pain management specialist and, on February 8, 2018,
Neisinger saw Dr. Oriente for pain management. Dr. Oriente
assessed Neisinger, and in his treatment plan for Neisinger
This is a case of a  male being seen in clinic for chronic
left knee pain status post left quadriceps surgical repair
and chronic low back pain radiation down left leg greater
than right. [Neisinger] also complains of anxiety disorder
with sleep disturbance for which I recommended
In response to Dr. Oriente's recommendation that
Neisinger undergo a psychological or psychiatric evaluation,
New Hampshire declined to authorize such a referral. Instead,
on February 12, 2018, New Hampshire scheduled a § 605
exam with Dr. ...