2018 MTWCC 9; WCC No. 2017-4143

 Neisinger Case

Order Reversing in Part and Affirming in Part Order Directing a Medical Examination

Summary:  Claimant appeals an Order from the DLI directing him to attend a § 39-71-605, MCA, examination with a psychiatrist and an orthopedist.  Claimant asserts that the DLI did not have jurisdiction to order him to attend an IME.  Claimant also asserts the Insurer, which has not authorized him to see a treating psychiatrist or psychologist, is “stacking the deck” with “hired guns,” and that Insurer foes not have good cause for multiple IMEs.  Insurer asserts that the DLI correctly ordered the examination with the psychiatrist because one of Claimant’s treating physician referred him to a psychiatrist or psychologist.  Insurer also asserts that the DLI correctly ordered the examination with the orthopedist because Claimant’s condition has changed.

Held:  The DLI’s order is reversed in part and affirmed in part.  The DLI had jurisdiction.  However, Insurer does not currently have good cause for an IME with the psychiatrist.  Because of the potential for bias, an insurer may not force a claimant to attend an IME with a Psychiatrist of its choosing, who will provide no treatment.  To balance a claimant’s rights with an insurer’s rights, the insurer must first authorize a treating psychiatrist or psychologist.  Insurer has good cause for an IME with the orthopedist because Claimant’s condition has arguably changed, the previous IME was two years ago, and Claimant’s treating physicians can comment on the IME physician’s opinions.