Carlson v. Mont. State Fund
| Decision Date | 20 June 2019 |
| Docket Number | WCC No. 2019-4630 |
| Parties | COLLIN CARLSON Petitioner v. MONTANA STATE FUND Respondent/Insurer. |
| Court | Montana Workers Compensation Court |
Summary: Respondent has not scheduled an examination under § 39-71-605, MCA, nor identified the physician who will conduct the examination should it be scheduled. However, Respondent seeks an order compelling Petitioner to attend such an examination whenever it schedules it. Respondent also requests this Court to vacate the current Scheduling Order so it has more time to schedule the examination.
Held: This Court denies Respondent's Motion to Compel. The plain language of § 39-71-605(1)(b), MCA, provides that this Court must set forth the time and place of the examination. Moreover, this Court has previously held that the insurer must notify the claimant of the identity of the examiner, the examiner's area of expertise, and the nature of the examination so the claimant can intelligently assess whether to object to the examination. Thus, this Court cannot issue a general order compelling a claimant to attend an examination when the information about the proposed examination is unknown. This Court also denies Respondent's request to vacate the current Scheduling Order because it has not set forth good cause to do so. ¶ 1 Respondent Montana State Fund (State Fund) moves to compel Petitioner Collin Carlson to attend an independent medical examination (IME) under § 39-71-605, MCA, at some time in the future. Because trial in this matter is in six weeks, Respondent asks this Court to vacate the current Scheduling Order so it has more time to schedule the examination. Carlson opposes State Fund's motions.
¶ 2 Carlson asserts that he suffered a compensable injury on December 21, 2018. Carlson alleges that he fell and thereafter suffered bilateral lower extremity weakness and diminished sensation.
¶ 3 On December 22, 2018, Carlson saw Benny E. Brandvold, MD, a neurosurgeon. Dr. Brandvold noted no neurosurgical explanation for Carlson's neurologic deficit. Dr. Brandvold thought that a differential diagnosis was conversion disorder.1
¶ 4 On December 23, 2018, Carlson saw Aaron Flanagan, MD. Dr. Flanagan diagnosed "paraplegia secondary to spinal cord injury without radiologic abnormality (SCIWORA) injury." Dr. Flanagan also diagnosed a concussion and a soft tissue injury to Carlson's low- and mid-back. Dr. Flanagan thought that Carlson would likely make a "significant recovery," though informed Carlson that the recovery time for a SCIWORA injury was "variable."
¶ 5 Dr. Flanagan saw Carlson again on December 26, 2018. Carlson had improved function in his legs. Dr. Flanagan recommended inpatient rehabilitation for approximately two weeks.
¶ 6 Dr. Brandvold saw Carlson again on December 28, 2018. Dr. Brandvold noted:
The patient reports he is demonstrating some improvement, though his neurologic status is still relatively profound given his normal MRIs on two occasions. In general, most cord injuries would be identified on a delayed MRI. Again, I have no anatomic explanation for his lower extremity weakness. As I had recommended in the past, I feel he would be best suited by a formal assessment by a neurologist who is board-certified in both Neurology and Psychiatry by definition. I concurred that he should go to rehab with aggressive therapy to get his function returned regardless of his underlying diagnosis. From a neurosurgical standpoint, there is no operative lesion and we will sign off at this time. If neurosurgical questions arise, feel free to contact us.
¶ 7 Also, on December 28, 2018, Carlson saw Jamal A. Balouch, DO. Dr. Balouch determined, "exact etiology unknown but differential diagnosis could include spinal cord injury without radiographic abnormality versus conversion disorder." Dr. Balouch thought that Carlson should be evaluated for "possible conversion disorder."
¶ 8 On January 2, 2019, Carlson saw Stephanie Burcusa, PhD, a psychologist, to "set the expectation for continued recovery, to encourage continued participation in therapies, and to build rapport in case further psychological intervention is needed during this rehab stay." Dr. Burcusa met with Carlson again on January 4, 7, and 10, 2019. Her notes state that she was seeing Carlson "to address adjustment/coping and engagement in rehab therapies."
¶ 9 On January 25, 2019, State Fund denied liability for Carlson's claim, asserting that that Carlson and his attorney had not provided necessary information.
¶ 10 On January 30, 2019, State Fund notified Carlson that it was going to schedule a neuropsychological examination under § 39-71-605, MCA.
¶ 11 Dr. Flanagan saw Carlson on February 8, 2019, for a follow-up after inpatient rehabilitation. Dr. Flanagan noted, in relevant part:
The patient had a work related injury when he fell backwards off a piece of equipment on a rock from about 7-8 up, with progressive weakness in the lower extremities following this. MR imaging was unremarkable for any spinal cord abnormality. The patient was diagnosed with spinal cord injury without radiographic abnormality. He was admitted to inpatient rehabilitation on December 28, 2018 and participated well in therapies and since has returned to home. He is using a cane for household mobility and a walker for long distances in the community. He is performing all of his activities of daily living independently.
Dr. Flanagan recommended, inter alia, that Carlson continue with physical therapy.
¶ 12 On February 6, 2019, Carlson's attorney sent a letter to State Fund stating that it was Carlson's position that a psychiatric examination was "unwarranted."
¶ 13 State Fund sent letters to Dr. Brandvold on February 21, 2019, and Dr. Balouch on February 25, 2019, in which it asked them to provide a referral to a physician who was board-certified in both neurology and psychiatry. However, Dr. Brandvold and Dr. Balouch declined to refer Carlson to such a physician, as they thought Dr. Flanagan should make the referral as he was Carlson's treating physician.
¶ 14 State Fund did not ask Dr. Flanagan for the referral.
¶ 15 On March 6, 2019, State Fund's attorney sent Carlson's attorney an email stating that State Fund was willing to pay for a psychiatric evaluation and asked Carlson's attorney to ask Dr. Flanagan for the referral. Carlson's attorney declined, taking the position that such an evaluation "is unnecessary given the diagnoses of a spinal concussion and soft tissue lumbar contusion." Carlson's attorney also asserted that Carlson's treating physician had ruled out conversion disorder.
¶ 16 On April 23, 2019, Dr. Burcusa wrote a letter to Carlson's attorney in which she stated that her treatment was "based on his rehab diagnosis of SCIWORA," that she did not see prior evidence of a premorbid mental health diagnosis, and that while she saw conversion disorder as a differential diagnosis in his records, her treatment was "focused on his psychological adjustment to the fall and to the physical symptoms he experienced as a result."
¶ 17 Carlson filed his Petition for Hearing on April 25, 2019.
¶ 18 State Fund filed its Response to Petition for Trial on May 20, 2019.
¶ 19 On May 23, 2019, State Fund filed its Motion to Compel Attendance at an Independent Medical Examination and Brief in Support. State Fund had not yet scheduled the examination, nor identified the examiner. Thus, it asks this Court to order Carlson "to attend an IME with a neurologist who is board-certified in Neurology and Psychiatry to assess a possible conversion disorder" at some time in the future.
¶ 20 Carlson opposes State Fund's motion on two grounds. First, Carlson argues that under the plain language of § 39-71-605, MCA, this Court cannot issue an order compelling attendance at an IME unless State Fund identifies the time and place of the examination and that under this Court's case law, State Fund must identify the examiner. Second, Carlson argues that State Fund's motion is untimely, as it was apparent when Carlson filed his brief that State Fund was going to miss the deadline to disclose the physician as an expert.
¶ 21 In its Reply Brief, filed on June 10, 2019, State Fund acknowledged that it still had not scheduled the examination, explaining that it has had "difficulty in locating a physician" . . . "who is board-certified in both Neurology and Psychiatry" who was willing to travel to Great Falls to examine Carlson. State Fund urges this Court to allow it to schedule the examination and to vacate the current trial setting to allow for the examination and, thereafter, a trial on the merits.
¶ 22 Section 39-71-605, MCA, provides, in relevant part:
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