If you represent injured workers in Montana, you have undoubtedly encountered an “Independent Medical Examination.” Normally there is nothing independent about these examinations, and IMEs are one of the insurers’ most effective tools in limiting its liability and denying benefits. IMEs rarely are helpful to an injured worker, and biased IME opinions can have far-reaching consequences for a claimant’s treatment, benefits, and medical outcome. Therefore, the best practice is often to prevent an improper IME rather than try to undermine it later.
Workers’ compensation law in Montana has a unique framework relating to IMEs, which is primarily found within Montana Code Annotated § 39-71-605. The relevant portions of this statute read:
(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.
As you can see, § 605 ostensibly allows the insurer to choose the doctor for the IME and to schedule it at almost any time throughout the claim. This rule, in conjunction with § 39-71-607, even allows the insurer to terminate benefits if the claimant refuses to attend. Many injured workers live check-to-check, so termination of benefits is not an option. Therefore, this threat is both coercive and effective in ensuring a claimant’s attendance.
However, an insurer’s right to an IME is not absolute. The Montana Workers’ Compensation Court has consistently upheld Montana’s high value on an individual’s right to privacy. In Liberty NW v. Marquardt, 2003 MTWCC 63, the Workers’ Compensation Court held that the purpose of § 605 is to allow insurers to obtain medical information, and insurers cannot demand an IME for “arbitrary or whimsical reasons.” In other words, the insurer must have a good reason for an IME.
Recently, in MacGillivray v. Montana State Fund, 2016 MTWCC 13, Judge Sandler reversed an Order from the Department of Labor compelling MacGillivray’s attendance at an IME. MacGillivray previously attended an IME at which the examiner opined that her condition was “psychogenically mediated.” The State Fund denied the claim based on this opinion.
En route to trial, the State Fund scheduled a second IME with a psychologist. MacGillivray refused to attend a second IME, claiming the State Fund did not have “good cause.” The State Fund requested and received an Order from the Department of Labor compelling her attendance at the IME pursuant to § 605(2) and MacGillivray appealed.
The court held that the DLI’s Order compelling MacGillivray’s attendance abused its discretion and violated MacGillivray’s constitutional right to privacy:
Notwithstanding DLI’s authority, pursuant to Mont. Code Ann. § 39- 71-605(2), to issue an order compelling the claimant to submit to an IME upon request, an insurer’s right to an IME is not unlimited. Mont. Code Ann. § 39-71-605(2), “must be construed in the context of the purpose of those procedures.” “In that vein, Rule 35(a), Mont. R. Civ. P. provides that an IME may be ordered only for good cause shown.” (Emphasis added).
MacGillivray, 32, citing Whitford v. Montana State Fund, 2006 MTWCC 11, 6.
The Montana Supreme Court has explained:
[G]ood cause for an examination may not constitute good cause for the specific examination requested by a defendant. A court must scrutinize a request for a proposed examination on a case-by-case basis. The time, place, manner, conditions and scope of an examination must be balanced with the plaintiff ’s inalienable rights. A court is further required to consider the availability of other means through which a defendant can obtain the information necessary to an informed defense.
Id., citing Simms v. Montana Eighteenth Judicial Dist. Court, 2003 MT 89, 33, 315 Mont. 135, 68 P.3d 678.
In MacGillivray, the Workers’ Compensation Court confirmed that a § 605 IME is analogous with a Rule 35 examination; therefore, insurers must demonstrate “good cause” as contemplated by the rules of civil procedure. Many legitimate disputes regarding IMEs arise with the prerequisite of “good cause,” including: (1) the conditions of the IME (time/ place/manner/recording); (2) the amount of IMEs in any given claim; (3) the type of specialist/provider who should conduct the IME; (4) the scope of the IME; (5) whether the sought after information is available through other means (less invasive); and (6) whether the examiner is truly “independent.” Nonetheless, these disputes are often not pursued by claimants or their attorneys. Claimants often feel coerced into attending unconstitutional examinations out of fear that their benefits will be terminated, and attorneys are put in the unenviable position of asking their clients to make due with little or no money while they seek judicial clarification. Fortunately, the Workers’ Compensation Court addressed this issue in Matejovsky v. New Hampshire Ins. Co., 2015 MTWCC 15. There the court affirmed that an IME is the most invasive form of discovery, so it invokes a claimant’s constitutional right of privacy. As such, the court said it was improper for an insurer to terminate TTD benefits when there was a legitimate dispute over the conditions of an IME. The court said it is unreasonable for insurers to coerce a claimant into attending an IME by advancing an ultimatum that the claimant either attend or have their benefits terminated.
While the court in Matejovsky provides guidance to insurers, some insurers will not always follow the court’s directive. Further, getting IME disputes adjudicated, even on an expedited docket, takes time. If an insurer terminates benefits, notwithstanding Matejovsky, for failure to attend an IME, the claimant is not without a remedy. Specifically, claimants can petition the ERD for interim benefits pursuant to § 39-71-610.
This statute reads:
If an insurer terminates biweekly compensation benefits and the termination of compensation benefits is disputed by the claimant, the department may, upon written request, order an insurer to pay additional biweekly compensation benefits prior to a hearing before the workers’ compensation court or prior to mediation, but the biweekly compensation benefits may not be ordered to be paid under this section for a period exceeding 49 days or for any period subsequent to the date of the hearing or mediation. A party may appeal this order to the workers’ compensation court. A proceeding in the workers’ compensation court brought pursuant to this section is a new proceeding and is not subject to mediation. If after a hearing before the workers’ compensation court it is held that the insurer was not liable for the compensation payments ordered by the department, the insurer has the right to be reimbursed for the payments by the claimant.
In Montana Health Network v. Graham, 2002 MTWCC 61, the Workers’ Compensation Court confirmed it considers four factors when determining whether § 610 benefits are appropriate: (1) was liability for the claim accepted; (2) were benefits paid; (3) has the claimant demonstrated she will suffer significant financial hardship if interim benefits are not ordered; and, (4) has the claimant tendered a strong prima facie case for reinstatement of the benefits she is seeking.
Additionally, in Montana Health Network, the court said that the claimant does not need to prove her entitlement to TTD benefits in order to qualify for § 610 benefits. Rather, the court said that the claimant need only tender substantial evidence that, if believed, would entitle her to the benefits that she seeks. Id. at 6. See also, Schneider v. Liberty Northwest Ins. Corp., 2000 MTWCC 18 (“Claimant need not prove that he will prevail, only that there is some evidence in his favor which is substantial and not facilely disregarded.”).
Essentially, § 610 benefits allow a claimant to get his or her benefits reinstated until the IME dispute can be decided by the court. Importantly, this statute is not limited to IME disputes, and claimants can request § 610 benefits in any instance where there is a legitimate dispute regarding the termination of TTD benefits.
The negative consequences of improper IMEs are often far reaching and difficult to eradicate. Therefore, it may be beneficial to protect your client prior to the IME. Pursuant to MacGillivray and Matejovsky, the insurer must demonstrate “good cause” for an IME and is prohibited from terminating benefits prior to resolution of IME disputes. Further, if the insurer terminates benefits, claimants can obtain § 610 benefits from the ERD pending judicial clarification.
In a nutshell, workers’ compensation claimants now have the right to bring legitimate IME disputes before the court without being starved out by the insurer. Taking these legitimate IME disputes to the court is important for your client and for the workers’ compensation system.
Help End Distracted Driving
Trial lawyer Joel Feldman created EndDD to honor his daughter Casey who was killed by a distracted driver. The interactive science-based presentation was developed in collaboration with Children’s Hospital of Philadelphia. Raise awareness of distracted driving by scheduling an EndDD presentation at a school, business, or event in your community.
Visit www.enddd.org to download all you need to make a presentation at your local school.
Caps On Punitive Damages Usurp The Jury’s Powers
Then, post-trial, this Court was required, and has now completed, a thorough review of the punitive damage award pursuant to §27-1-221(7) MCA, as well as federal due process guidelines. Notwithstanding the jury’s informed decision, and this Court’s subsequent careful and cautious review under federal and state law, imposition of the 10 million dollar cap set in §27-1-220(3) MCA requires this Court to totally ignore the jury and its own determination of a proper punitive damages award and impose the judgment of the legislature, which governmental body neither heard nor considered any evidence whatsoever. Worse yet, the Court finds the cap chosen by the legislature is both arbitrary and defeats the purposes of punitive damages.
Olson v. Hyundai
MONTANA TWENTIETH JUDICIAL DISTRICT COURT, LAKE COUNTY
Cause No. DV 11-304 – Judge Kim Christopher