THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA
2002 MTWCC 21
WCC No. 2002-0505
The employer, which is self-insured, seeks an order directing that claimant
submit to an independent medical examination by a specialist in Portland,
Oregon. It moves for summary judgment. Claimant in his reply to the motion
for summary judgment does not contest the appropriateness of the examination
or the examiner, nor does he provide facts or argument indicating that
Portland is an inappropriate place. Rather, he alleges that prior to any
examination he should have the opportunity to depose three co-employees,
two who are facilities managers and the third a human resources employee.
employer is entitled to the examination. Claimant has failed to provide
any facts showing that the proposed depositions are relevant to any medical
issue or to the further medical evaluation of the claimant.
Examinations. As provided in section 39-71-605(1), MCA, where
a claimant is entitled to compensation the insurer may request the claimant
to submit "from time to time" to an independent medical examination.
Where the claimant refuses to submit to the request, the Court may order
Examinations. Where medical information submitted to the Court
indicates that a requested independent medical examination is appropriate
and that the expertise of the examining physician is related to the
claimant's condition, the Court will order the examination.
Examinations. The Court will not defer an independent medical
examination to allow the claimant to undertake discovery where the claimant
fails to provide any facts showing that the proposed discovery is relevant
to any medical issue or to the further medical evaluation of the claimant.
Regulations and Rules: Montana Code Annotated: Section 39-71-605, MCA
(1999). As provided in section 39-71-605(1), MCA, where a claimant
is entitled to compensation the insurer may request the claimant to
submit "from time to time" to an independent medical examination. Where
the claimant refuses to submit to the request, the Court may order the
¶1 The petitioner, Benefis
Healthcare (Benefis), is the employer of David L. Jackson (claimant),
who suffered a work-related ankle injury on June 26, 2000. Benefis is
self- insured. In its petition it requests an order directing claimant
to submit to an independent medical examination (IME) by Dr. Jose Ochoa
in Portland, Oregon. It now moves for summary judgment, relying on the
pleadings and medical records which are attached to its motion.
¶2 The facts set out by Benefis
in its supporting brief are not contested by claimant. Those facts are:
¶2a David Jackson injured
his left ankle while employed as a nurse by Benefis Healthcare in Cascade
County, on June 26, 2000. (Petition for Trial, paragraph 1; Response
to Petition for Trial, paragraph 1.)
¶2b Mr. Jackson's condition
required left ankle surgery and a controversy exists concerning where
Mr. Jackson has achieved maximum medical improvement. Orthopedic surgeon,
Michael Yorgason, M.D., believes Mr. Jackson has reached maximum medical
improvement for all conditions causally related to his employment. (Yorgason
Report, p. 2.) Mr. Jackson's treating physician, podiatrist Ronald Ray,
D.P.M., wants to have additional issues addressed by an out-of-state
specialist before finding maximum medical improvement. (Reports of Ronald
¶2c Mr. Jackson now alleges
additional problems with his left leg, above the ankle, and right leg
from his foot to his knee. (Response to Petition, paragraph 1.)
¶2d Mr. Jackson's condition
has been diagnosed as reflex sympathetic dystrophy or complex regional
pain syndrome. (Records of Ronald Ray, D.P.M., and Michael Yorgason,
¶2e Dr. Ray has stated:
It also appears that Mr.
Jackson may be sent to Oregon by Dr. Ochoa. Obviously an outside authority
is totally appropriate, and although my initial recommendation was
Stanton Hicks, I am not totally against the patient seeing Dr. Ochoa
for further evaluation and assessment regarding his pain pattern.
It is difficult at this point to say whether or not this is a complex
regional pain problem or a localized problem in the ankle and foot
that has not yet been identified that his [sic] causing global symptoms.
I would be very interested to see what Dr. Ochoa's evaluation and
assessment produces regarding potential plans for intervention for
(Records of Ronald Ray,
D.P.M., August 20, 2001.) Dr. Ray reiterated this statement on October
23, 2001. (Records of Dr. Ray, D.P.M.)
¶2f Because of the complex
nature of Mr. Jackson's condition(s), Benefis scheduled an independent
medical evaluation with Dr. José Ochoa, M.D. [sic], in Portland,
Oregon, and Mr. Jackson refused to attend. (Petition for Trial, paragraph
3; Response to Petition, paragraph 3.)
¶2g Dr. Ochoa is the Director
of the Neuromuscular Clinic of the Neurosciences Department and Professor
of Surgery in the Division of Neurosurgery at Oregon Health Sciences
University. Dr. Ochoa has researched and written extensively in the
area of sympathetic disorders, and has authored multiple articles on
reflex sympathetic dystrophy. He holds multiple doctorates from the
Catholic University in Santiago, Chile, and the University of London.
(Attached internet summary of José L. Ochoa, M.D.)
¶2h Benefis is currently
paying temporary total disability benefits and awaits resolution of
the diagnosis, maximum medical improvement, and related issues, which
will be addressed by Dr. Ochoa.
(Benefis Healthcare's Motion
for Summary Judgment And Supporting Brief at 2-3.
¶3 The Workers' Compensation
Act makes specific provision for IMEs. Section 39-71-605, MCA (1999),
provides in relevant part:
of employee by physician -- effect of refusal to submit to examination
-- report and testimony of physician -- cost.
(1)(a) Whenever in case
of injury the right to compensation under this chapter would exist in
favor of any employee, the employee shall, upon the written request
of the insurer, submit from time to time to examination by a physician,
psychologist, or panel that must be provided and paid for by the insurer
and shall likewise submit to examination from time to time by any physician,
psychologist, or panel selected by the department or as ordered by the
workers' compensation judge.
(b) The request or order
for an examination must fix a time and place for the examination, with
regard for the employee's convenience, physical condition, and ability
to attend at the time and place that is as close to the employee's residence
as is practical. An examination that is conducted by a physician, psychologist,
or panel licensed in another state is not precluded under this section.
The employee is entitled to have a physician present at any examination.
If the employee, after written request, fails or refuses to submit to
the examination or in any way obstructs the examination, the employee's
right to compensation must be suspended and is subject to the provisions
of 39-71-607. Any physician, psychologist, or panel employed by the
insurer or the department who makes or is present at any examination
may be required to testify as to the results of the examination.
(2) In the event of a dispute
concerning the physical condition of a claimant or the cause or causes
of the injury or disability, if any, the department or the workers'
compensation judge, at the request of the claimant or insurer, as the
case may be, shall require the claimant to submit to an examination
as it considers desirable by a physician, psychologist, or panel within
the state or elsewhere that has had adequate and substantial experience
in the particular field of medicine concerned with the matters presented
by the dispute. The physician, psychologist, or panel making the examination
shall file a written report of findings with the claimant and insurer
for their use in the determination of the controversy involved. The
requesting party shall pay the physician, psychologist, or panel for
Under subsection (1), where
there is a compensable injury the insurer is entitled to schedule an IME
whether or not there is currently a dispute regarding compensation. The
Department or Court may also order an examination. Under subsection (2),
if there is a dispute concerning the physical condition of claimant or
the causal relationship between claimant's condition and his injury or
disability, the insurer may apply to the Court for an order directing
an examination. Under either subsection, the Court may order the examination.
¶4 The medical records furnished
by the insurer indicate that further evaluation by an expert such as Dr.
Ochoa is appropriate and calculated to determine the nature of claimant's
condition and appropriate treatment. According to Benefis, and not refuted
by claimant, Dr. Ochoa is the Director of the Neuromuscular Clinic fo
the Neurosciences Department and Professor of Surgery in the Division
of Neurosurgery at Oregon Health Sciences University. He has special expertise
in sympathetic nerve disorders. Claimant has been diagnosed as suffering
from such a disorder. Claimant has not provided any facts or argument
contesting Dr. Ochoa's expertise, the applicability of that expertise
to claimant's condition, or the appropriateness of the examination.
¶5 Under subsection (2), the
examination may be in this state "or elsewhere" so long as the IME physician
has expertise in the appropriate field of medicine. Under subsection (1),
the examination must be at a "place that is as close to the employee's
residence as is practical." Claimant does not oppose the examination on
the basis of location, so the Court need not consider whether there is
a physician with similar expertise as Dr. Ochoa who practices closer to
¶6 The only basis tendered
by claimant in opposition to the requested IME is his desire to obtain
additional discovery. Specifically, he wants depositions of two facilities
managers at Benefis and of a human resources employee of Benefis. In his
opposition to the motion for summary judgment, claimant does not indicate
the purpose or the relevance of the depositions to the IME request. No
medical documentation or opinion has been provided which indicates that
the information sought from the Benefis' employees is relevant to any
medical issue or to the further medical evaluation of the claimant. Given
that lack of information, there is no basis for denying or deferring the
motion for summary judgment.
¶7 Claimant is ordered to submit
to an IME by Dr. José Ochoa in Portland, Oregon on a date and at
a time to be agreed upon by claimant and Benefis. If they cannot agree
on the date and time, then the Court will determine the date and time.
¶8 This JUDGMENT is certified
as final for purposes of appeal.
DATED in Helena, Montana,
this 11th day of April, 2002.
c: Mr. Leo S. Ward
Mr. Thomas J. Murphy
Submitted: April 10, 2002