39-71-605, MCA

MacGillivray v. Montana State Fund [10/04/16] 2016 MTWCC 13 Where the treating physician agreed with the IME doctor's “assessment of the diagnosis of vocal cord dysfunction,” but in response to specific questions from Petitioner's attorney, later disagreed with the IME doctor's position that Petitioner's condition was a psychogenically-mediated temporary aggravation, insurer is not entitled to a second IME due to a change in medical opinion.  Although the treating physician’s later opinion is more detailed, the details are not inconsistent with his prior opinion.

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.

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 After Petitioner attended two IMEs, including a two-day psychological IME, Respondent cannot compel Petitioner to submit to a third IME by alleging that it wants Petitioner to undergo memory testing where it has neither identified which tests Petitioner has already undergone nor which tests it now seeks. Respondent has given the Court no means to assess whether these additional tests would be duplicative of tests already performed nor has it offered an explanation as to why those tests were not performed during Petitioner’s previous IMEs.
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.
Perlinski v. Montana Schools Group Ins. Auth. [06/21/11] 2011 MTWCC 16 Section 39-71-605(1)(b), MCA, requires that an IME be set with regard for the employee’s convenience and as close to the employee’s residence as is practical. An IME located several hundred miles and two states away pays little, if any, regard to the employee’s convenience. While Respondent argues that the IME doctor it selected is the most experienced and qualified doctor available, it has failed to prove that no adequate examination could be conducted in Montana. Respondent cannot compel Petitioner’s attendance at an out-of-state IME although it may choose to have the physician travel to Montana to complete the IME as close to Petitioner’s residence as practical.
Salazar v. Montana State Fund [03/15/11] 2011 MTWCC 10 Where a claimant does not dispute that his condition has changed since a previous IME, but contends without explanation that the insurer is not entitled to a “Rule 35” examination without addressing why he believes the Court should look to the Rules of Civil Procedure to the exclusion of § 39-71-605, MCA, the claimant’s motion for a protective order to prevent the insurer from obtaining the IME is denied.
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.
Stillwater v. Bunch [12/21/06] 2006 MTWCC 43 In Mack v. Montana State Fund, 2005 MTWCC 28, this Court set forth four factors which it would like a party requesting an out-of-state IME to address to facilitate the Court’s determination, and the Court adopts these factors in the present case to determine whether the mandates of § 39-71-605(1)(b), MCA, have been complied with.
Stillwater v. Bunch [12/21/06] 2006 MTWCC 43 Although the Court agrees with Petitioner that the words “within the state” refers to the State of Montana, a complete reading of § 39-71-605(2), MCA, requires that an IME be conducted “within the state or elsewhere,” essentially posing no restrictions on where an IME may be conducted.
Whitford v. Montana State Fund [03/23/06] 2006 MTWCC 11 Although Petitioner claimed Respondent cannot avail itself of this statute because occupational disease claims allegedly were not brought under the purview of this section until 2005, the Buckman rule has been specifically rejected as it pertains to IMEs. The Montana Supreme Court has held that the law in effect as to the date of the trial is controlling for IMEs.

[1999] 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).

[2003] 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.
[2001] Broyles v. Albertson's [10/22/03] 2003 MTWCC 61 Subsection (5) of section 39-71-605, MCA (2001), precludes an insurer or self-insured employer from obtaining either an IME or FCE for the purposes of obtaining an impairment rating. [Note: See Broyles 2004 MTWCC 19 Withdrawing Decsion and Order Quashing IME and FCE.]
[1999] 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.
[1999] Gryttenholm v. Fremont Industrial Ins. [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.
[1999] 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.

[1995] 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.

[1993] 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.