IN THE WORKERS' COMPENSATION
COURT OF THE STATE OF MONTANA
2002 MTWCC 39
WCC No. 2002-0584
AMERICAN HOME ASSURANCE COMPANY
ORDER DENYING MOTION FOR SUMMARY
Insurer moves for summary judgment directing claimant to submit to an
out-of-state independent medical examination (IME).
is not entitled to an order for an out-of-state independent medical examination
unless it demonstrates that an appropriate IME cannot be done in-state.
Regulations, and Rules: Montana Code Annotated: Sections 39-71-605(1)(b)
and (2), MCA (1999-2001). 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
Examination. 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).
Statutes and Statutory
Interpretation: Construing as a Whole. The subsections of a
statute must be construed together to give effect to all provisions.
Where one subsection provides that an independent medical examination
shall be conducted at a place as close as practical to a claimant, and
another subsection states that the Court may order an IME either in
or out-of-state, the Court must fix the place of the examination as
close as practical to the claimant's residence.
Criteria. Where an insurer moves for summary judgment directing
a claimant to submit to an out-of-state independent medical examination,
the statute governing such examination provides for the examination
to take place as close as practical to the claimant's residence, and
the claimant objects to the out-of-state examination based on distance,
the insurer, to prevail on its motion, must present uncontroverted facts
showing that it is not practical to obtain an examination in-state and
closer to claimant's residence. It cannot rest on mere allegations that
the out-of-state examination is appropriate.
¶1 Petitioner herein is an
insurer which is paying benefits under a reservation of rights. Through
its petition, it seeks an order directing claimant to submit to an IME
by Dr. Jose Ochoa in Portland, Oregon. Claimant has to date refused to
submit to the examination and the insurer American Home Assurance Company
(American) now moves for summary judgment.
Factual Basis for the Motion
¶2 The motion is based on the
pleadings. American cites claimant's admissions to certain of its allegations,
including the fact that she has to date declined American's demand that
she travel to Portland to undergo an examination by Dr. Ochoa, a specialist
in carpal tunnel syndrome. Claimant has undergone two carpal tunnel releases
but apparently is still suffering symptoms.
¶3 Claimant filed a belated
response to the motion for summary judgment, indeed the response was nearly
two weeks late. Prior to the filing of the brief, American urged the Court
to summarily grant its motion on the ground that claimant's failure to
file a timely reply amounts to an admission that the motion is well taken.
Notwithstanding the rule,
it still must appear from the face of the motion and its supporting evidence
that the moving party is entitled to judgment as a matter of law. ARM
24.5.329(2). "It is well established that the moving party must prove
that it is entitled to judgment as a matter of law." Western Industries,
Inc. v. Chicago Min. Corp., 279 Mont. 105, 109, 926 P.2d 737, 739
(1996). If there is "any doubt" regarding the propriety of summary judgment,
the motion must be denied. Id.
¶4 In her response to the petition,
the claimant alleges that she is entitled to have an independent medical
examination held as close to her place of residence as practical and contends
that Portland, Oregon, is not such a place. Her allegations are predicated
upon the plain language of section 39-71-605, MCA, which provides in relevant
39-71-605. Examination 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
¶5 American proffers no factual
evidence demonstrating that it cannot secure an adequate IME from a physician
closer to claimant's residence. Rather, citing language in subsection
(2) and this Court's recent decision in Benefis Healthcare v. Jackson,
2002 MTWCC 21, it argues it is entitled to have claimant examined
in Portland without regard to the practicality of a closer exam. American
misreads both subsection (2) and Benefis.
¶6 Subsection (2) allows the
Court to order an out-of-state examination, however, the section must
be read together with subsection (1)(b), which provides generally that
the claimant is entitled to be examined in a "place that is as close to
the employee's residence as is practical." Rules governing statutory interpretation
require that "a court must reject a construction that would leave any
part of the statutory language without effect--the court must give effect
to all relevant provisions of the statute." Montco v. Simonich,
285 Mont. 280, 287, 947 P.2d 1047, 1051 (1997). When read together with
subsection (1), subsection (2) authorizes the Court to order an out-of-state
examination when examination by an appropriate specialist cannot be had
¶7 American's reading of Benefis
is out of context and in disregard of the specific facts and issues of
the case. In Benefis I ordered an out-of-state examination, however,
my decision in that matter was based upon the failure of the claimant
to object to an out-of-state examination. The only issue was whether claimant
was entitled to take depositions before an IME.
¶8 Unlike Benefis,
the claimant in this case objects to the out-of-state examination. The
burden is therefore on the insurer to show that an appropriate IME cannot
be had closer to claimant's place of residence. Such showing might be
made by presenting evidence showing that the out-of-state physician has
special expertise appropriate to claimant's case which is unavailable
among physicians in Montana, or that Montana physicians with the requisite
expertise are unwilling to perform an IME. No such evidence has not been
presented in conjunction with American's motion.
¶9 The motion for summary judgment
DATED in Helena, Montana,
this 8th day of August, 2002.
c: Mr. Thomas A. Marra
Mr. Thomas J. Murphy
Submitted: August 5, 2002
1. The rule
(4) Failure to file briefs
may subject the motion to summary ruling. Failure of the moving party
to file a brief with the motion shall be deemed an admission that the
motion is without merit. Failure of the adverse party to timely file
an answer brief may be deemed an admission that the motion is well taken.
Reply briefs are optional and failure to file a reply brief will not
subject the motion to summary ruling.