Independent Medical Examination: Generally

MONTANA SUPREME COURT DECISIONS

Montana State Fund v. Grande [03/20/12] 2012 MT 67 An independent medical examiner’s opinion will be given less weight than the treating physician where the IME doctor did not examine the claimant but gave his medical opinions solely on the basis of a medical records review, where the IME doctor’s opinions relied more on the claimant’s job title than on the actual duties of the job, and where the IME doctor opined that there was a “lack of any literature” that supported an aggravation of rheumatoid arthritis by working as a truck driver.
EBI/Orion Group v. Blythe, 281 Mont. 50, 931 P.2d 38 (1997) Under the 1993 version of section 39-71-605, MCA, an IME may not be conducted by a psychologist who is neither a physician nor licensed to practice in the state of Montana. While agreeing the term "treating physician" within section 39-71-116(30), MCA (1993) is not limited to medical doctors, the legislature was very specific in defining which professionals may be a "treating physician." Where psychologists were not included in the list, the WCC erred in ordering an IME by a psychologist and in considering the opinion of an IME psychologist.
 
WORKERS' COMPENSATION COURT DECISIONS

MacGillivray v. Montana State Fund [10/04/16] 2016 MTWCC 13 Where, following an IME, a medical doctor opined that Petitioner's condition was psychogenically-mediated, and insurer denied liability based on his determination that Petitioner's aggravation was merely temporary, the insurer is not entitled to a second IME by a psychologist to bolster the medical doctor's conclusions.

New Hampshire Ins. Co. v. Matejovsky [08/07/15] 2015 MTWCC 15 Since IME’s are the most invasive type of discovery and implicate a person’s constitutional right to privacy, an insurer may not coerce a claimant to attend an IME by making an ultimatum to attend or lose benefits when there is a legitimate dispute over the conditions of the IME.

Chapman v. Smurfit-Stone Container Enterprises, Inc. [06/05/13] 2013 MTWCC 12 Although Petitioner has previously submitted to three IMEs since his May 2005 industrial accident, he has been on temporary total disability benefits for over seven years and has seen a host of medical and psychological specialists with no discernible improvement in his condition and with far-ranging opinions as to the cause of his complaints.  Compelling reasons exist for an IME by a forensic psychiatrist, consistent with the intent of § 39-71-605(2), MCA, to evaluate Petitioner’s mood disorder and cognitive impairment, and to determine whether psychotropic medication would be an appropriate method of treatment for his various subjective complaints.
Dodge v. Montana Insurance Guaranty Ass'n [07/21/11] 2011 MTWCC 20 Where Petitioner had a documented history of memory problems prior to submitting to two IMEs, Respondent cannot compel Petitioner to submit to a third IME on the grounds that his condition may have changed without offering any evidence in support of this allegation.
Vandervalk v. Montana State Fund [04/30/09] 2009 MTWCC 15 Although Respondent attempted to obtain an IME with a cardiologist, it was unable to do so within Montana. Respondent decided not to seek an out-of-state IME. Although Petitioner argues that Respondent should be required to obtain the IME, Respondent is not statutorily obligated to do so.
Challinor v. Montana Insurance Guaranty Association [05/14/08] 2008 MTWCC 21 Request for motion to compel denied where Respondent scheduled an IME 175 miles from Petitioner’s residence and argued that Petitioner should be precluded to objecting that the IME be scheduled “as close to the employee’s residence as is practical” because Petitioner regularly drove 145 miles for medical care. Respondent bears the burden of demonstrating that an appropriate IME cannot be had closer to the claimant’s place of residence. Respondent has not done so in this case, and the Montana Supreme Court has held that a person’s willingness to travel large distances for treatment has no bearing on whether he or she should be compelled to travel for an IME.
Haman v. Wausau [11/30/07] 2007 MTWCC 49 After Respondent obtained an IME, Petitioner amended her petition from a claim of PTD to TTD. This invokes the issue of Petitioner’s healing status, which was not at issue at the time of her IME. Therefore, the insurer is entitled to a second IME because Petitioner’s medical condition has changed.
Stillwater v. Bunch [12/21/06] 2006 MTWCC 43 Although Petitioner asserts that it cannot locate a suitable physician in Respondent’s area of residence because, when scheduling an IME, it is Petitioner’s practice not to use a doctor in the same office as a doctor with whom the claimant has treated, this is not a good cause criteria that has been recognized in prior case law in the Court, and the Court is not willing to adopt such a criteria in the present case.
Whitford v. Montana State Fund [03/23/06] 2006 MTWCC 11 Respondent, who had not previously sought an IME, is therefore entitled to one under § 39-71-605(2), MCA.
Kruzich v. Old Republic Ins. Co. [03/10/05] 2005 MTWCC 12 The Workers’ Compensation Court will order a claimant to undergo an out-of-state medical examination only if the requested examination is reasonable and the medical expertise needed to address the medical issue at stake is unavailable in Montana or Montana physicians having the necessary expertise are unwilling to conduct the examination. § 39-71-605, MCA (2003).
Thompson v. Liberty NW Ins. Corp. [2/25/04] 2004 MTWCC 16 A claimant does not have a right to an independent medical examination paid for by the insurer. Statutes governing IMEs give the insurer, not the claimant, the right to request such examinations. § 39-71-605, MCA (1999). However, a claimant is always free to obtain a second opinion, including a second impairment evaluation, at his or her own expense. § 39-71-711(2), MCA (1999).
Liberty NW v. Robin Marquardt [10/30/03] 2003 MTWCC 63 An insurer is not entitled to independent medical examinations without limit. It is entitled to an IME only where there are sound reasons for conducting one. § 39-71-605, MCA (2003).
Re: Thunstrom [8/8/02] 2002 MTWCC 39 Where the claimant insists, she is entitled to have an independent medical examination conducted as close to her residence as practical. An out-of-state IME will be ordered only where it is not practical to schedule one in-state, for example where the proposed examiner has special expertise specifically appropriate to claimant's condition which Montana examiners do not have or where Montana physicians with the requisite expertise are unwilling to perform an IME. §§ 39-71-605(1)(b) and (2), MCA (1999-2001).
Gryttenholm v. Fremont Industrial Indemnity [4/19/02] 2002 MTWCC 24 Insurers have a duty to accurately inform claimants of the nature and purpose of any medical examination arranged by the insurer, as well as the specialty of the examiner. Failure to properly inform a claimant of those matters may result in the Court excluding evidence regarding the examination and the opinions of the examiner.
Benefis Healthcare v. David Jackson [4/11/02] 2002 MTWCC 21 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.
Benefis Healthcare v. David Jackson [4/11/02] 2002 MTWCC 21 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 examination.
Benefis Healthcare v. David Jackson [4/11/02] 2002 MTWCC 21 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.
Stacy v. Plum Creek [12/14/01] 2001 MTWCC 64 Where a claimant has already submitted to an independent medical examination requested by an insurer, he will not be required to submit to a second examination merely because the first IME physician's opinions might be impeached based upon communications between the physician and the insurer's claim's adjuster.
Stacy v. Plum Creek [12/14/01] 2001 MTWCC 64 The Workers' Compensation Court has the authority to order a claimant to submit to an independent medical examination.
Delaney v. Hartford [3/1/01] 2001 MTWCC 10 Opinions of IME physician who did not examine claimant, who injected himself into the IME process after the physician who was charged with conducting the IME left the practice without rendering ultimate opinions, and who disregarded in toto the results and conclusions of an FCE without good reason is entitled to no weight.

P. Davis v. Credit General Ins. Co. [8/9/00] 2000 MTWCC 48 WCC condemns use of argumentative and slanted introductory letters from attorneys to IME physicians. The more slanted the presentation of so-called "factual" materials, the less confidence the Court is likely to have in the expert's opinion. The hazard is greater if the facts are misstated or mischaracterized. Note: Affirmed in nonciteable decision 2002 MT 11N.

Sloan v. American Home Assurance Co. [5/8/98] 1998 MTWCC 38 Protective order granted against IME with cardiac surgeon where Larson v. Cigna Ins. Co., 271 Mont. 98, 894 P.2d 327 (1995) establishes that even if a worker is totally disabled on account of a pre-existing non work-related heart condition, the worker is still entitled to workers' compensation total disability benefits if his industrial injury is also totally disabling. Petitioner must, however, prove that his work-related injuries are in fact totally disabling. Where evidence indicates that claimant's heart condition may have caused memory loss, WCC notes that if claimant is contending the industrial injury caused memory loss, then the insurer would be entitled to an IME.
Blancher v. Liberty Mutual [12/24/96] WCC No. 9606-7567 Insurer's motion to compel independent psychiatric examination is granted over claimant's objection based on opinions of her treating physicians that such evaluation is not necessary and could be harmful to claimant. The insurer produced counter-opinions indicating the need for further evaluation. A well-known and respected psychiatrist opined that further evaluation is warranted and outlined a non-demanding examination schedule in a neutral environment. An orthopedic surgeon opined that claimant's industrial injury was a muscle strain which has completely healed, suggesting her continued complaints may be due to psychological factors unrelated to the injury.
Stormont v. National Union Fire of Pittsburgh [1/05/96] 1996 MTWCC 2 Under section 39-71-605, MCA (1995), a claimant must submit from time to time to examination by a physician or panel selected by the and shall also submit from time to time to examination by a department-selected physician. Limiting IMEs to physicians selected by the department would nullify one of the statutory provisions.
Harball v. Liberty Mut. Fire Ins. Co. [11/03/95] 1995 MTWCC 90 Under section 39-71-711, MCA (1989), where each party has already obtained an impairment rating, and the parties dispute the appropriate rating, the procedure to be followed is designation of an evaluator by the Department of Labor, as specified in subsection (3) of the statute. Until that procedure is followed, the Workers’ Compensation Court lacks jurisdiction to make further orders on the dispute and will not compel claimant to attend.
Hansen v. Nat'l Union Fire Ins. of Pittsburgh [10/17/95] 1995 MTWCC 79 Although insurer requested contested case hearing before the DOL regarding claimant’s refusal to attend an out-of-state independent medical examination, Workers’ Compensation Court had jurisdiction over petition alleging controversy over medical benefits.

EBI/Orion Group v. Blythe [06/06/95] 1995 MTWCC 43 Where claimant alleges disability due to a mental condition arising from a physical injury, an independent medical examination concerning his mental condition is appropriate and reasonable. While section 39-71-605, MCA (1993) refers to an IME by a “physician,” other provisions of the Workers’ Compensation Act make clear that “physician” is used in a broad sense. Given this context, and practice in the workers’ compensation field for IME panels to include Ph.D. psychologists, the requested IME is proper.