Neisinger v. New Hampshire Ins. Co.

• Decision Date: 19 November 2019
• Docket Number: DA 18-0400
• Citation: 2019 MT 275,452 P.3d 909,398 Mont. 1
• Parties: Michael NEISINGER, Petitioner and Appellee, v. NEW HAMPSHIRE INS. CO., Respondent and Appellant.
• Court: Montana Supreme Court

398 Mont. 1

452 P.3d 909

2019 MT 275

Michael NEISINGER, Petitioner and Appellee,

v.NEW HAMPSHIRE INS. CO., Respondent and Appellant.

DA 18-0400

Supreme Court of Montana.

Submitted on Briefs: March 20, 2019

Decided: November 19, 2019

For Appellant: Kelly M. Wills, Carrie L. Garber, Shea A.B. Sammons, Wills Law Firm, PC, Missoula, Montana

For Appellee: Thomas J. Murphy, Murphy Law Firm, Great Falls, Montana

For Amicus Montana State Fund: Kevin Braun, Nick Mazanec, Special Assistant Attorneys General, Montana State Fund, Helena, Montana

For Amici Montana Municipal Interlocal Authority and Montana Schools Group Insurance Authority: Oliver H. Goe, Leo S. Ward, Kasey R. Kimball, Browning, Kaleczyc, Berry & Hoven, P.C., Helena, Montana

Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1 New Hampshire Insurance Company (New Hampshire) appeals from an Order of the Workers’ Compensation Court (WCC) reversing in part and affirming in part the Montana Department of Labor and Industry (DLI) Order Directing Medical Examination.

¶2 We address the following issues:

Issue One: Whether Neisinger’s complaints of anxiety and insomnia provide a basis to require a psychiatric examination pursuant to § 39-71-605, MCA, before it is established that the complaints are related to his workers’ compensation claim.

Issue Two: Whether New Hampshire must authorize Neisinger to see a psychiatrist or psychologist who will evaluate him and provide treatment if necessary before it can obtain a psychiatric examination pursuant to § 39-71-605, MCA.

¶3 We affirm in part, reverse in part, and remand for further proceedings consistent with this Opinion.

PROCEDURAL AND FACTUAL BACKGROUND

¶4 On May 27, 2015, Michael Neisinger was injured in the course of his employment when a high-pressure stream of water hit his left thigh and knocked him off a platform. Neisinger suffered several injuries to his left leg, including a rupture of his quadriceps tendon

.

¶5 New Hampshire provides workers’ compensation insurance for Neisinger’s employer. New Hampshire accepted liability for Neisinger’s left leg injury. Neisinger sought treatment for his injury with Dr. John Ortiz and Dr. James Elliot.

¶6 On June 15, 2016, Neisinger underwent a medical examination pursuant to § 39-71-605, MCA, (§ 605 exam) with Dr. Joseph Erpelding, an orthopedist retained by New Hampshire. Dr. Erpelding determined that Neisinger was at maximum medical improvement (MMI) for his leg injuries and assigned a five percent whole person impairment rating. On August 18, 2016, Dr. Elliot agreed with Dr. Erpelding’s opinion that Neisinger had reached MMI and that Neisinger should limit his use of stairs and ladders and should avoid squatting.

¶7 On October 26, 2017, Neisinger returned to Dr. Elliot and reported an increase in left knee pain. Dr. Elliot noted that (1) Neisinger presented with knee pain since his leg surgery, and (2) Neisinger had a recent event at a grocery store where his knee gave out, resulting in severe pain. Dr. Elliot concluded Neisinger needed additional medication to control his pain and referred Neisinger to Dr. S. Dante Oriente, a pain management specialist. Dr. Elliot requested pre-authorization for Neisinger to be seen by a pain management doctor.¹ New Hampshire authorized the referral to a pain management specialist and, on February 8, 2018, Neisinger saw Dr. Oriente for pain management. Dr. Oriente assessed Neisinger, and in his treatment plan for Neisinger stated:

This is a case of a [ ] male being seen in clinic for chronic left knee pain status post left quadriceps surgical repair and chronic low back pain radiation down left leg greater than right. [Neisinger] also complains of anxiety disorder with sleep disturbance for which I recommended psychologist/psychiatrist referral.

¶8 In response to Dr. Oriente’s recommendation that Neisinger undergo a psychological or psychiatric evaluation, New Hampshire declined to authorize such a referral. Instead, on February 12, 2018, New Hampshire scheduled a § 605 exam with Dr. Spencer Greendyke, an orthopedist, and Dr. William Stratford, a psychiatrist.

¶9 On February 16, 2018, Neisinger notified New Hampshire that he would not attend the § 605 exam. New Hampshire then requested an order from DLI directing Neisinger to attend the exam with Dr. Greendyke and Dr. Stratford. Neisinger objected, asserting that (1) New Hampshire did not have good cause for a second § 605 exam, and (2) New Hampshire failed to address the statutory elements in its request for an order compelling a § 605 exam as required by § 39-71-605(1), MCA, including the requirement that it set forth the place and time for the exam and requiring a § 605 exam by a doctor (Dr. Greendyke) who does not have admitting privileges to any Montana hospital. New Hampshire cancelled the § 605 exam and, on March 19, 2018, DLI issued an Order denying New Hampshire’s Request for Medical Examination as moot.

¶10 On March 21, 2018, New Hampshire scheduled another § 605 exam for April 13, 2018, with Dr. Stratford and Dr. Mark Rotar, an orthopedist. New Hampshire requested that DLI order Neisinger to attend the § 605 exam panel. On March 27, 2018, DLI issued its Order Directing Medical Examination pursuant to § 39-71-605, MCA, stating in relevant part:

Upon a ... review of the information submitted on [Neisinger], [DLI] concludes [Neisinger] should be examined by [Dr. Stratford and Dr. Rotar] for a diagnostic update of [Neisinger’s] medical problems attributable to [his] industrial injury of 05/27/2015.

¶11 On April 2, 2018, Neisinger appealed DLI’s Order to the WCC. On July 13, 2018, the WCC issued an Order Reversing in Part and Affirming in Part [DLI’s] Order Directing a Medical Examination. The WCC concluded that New Hampshire did not have good cause to require Neisinger to attend a § 605 exam with Dr. Stratford. The WCC’s Order stated in relevant part:

The plain purpose of [§] 39-71-605, MCA, is to allow insurers to obtain independent opinions and information concerning a claimant’s disability status, his or her current medical condition and need for further treatment, and the relationship of the claimant’s condition to the industrial injury or disease .

...

[A]llowing New Hampshire to have (a § 605 exam) before Neisinger can see a psychiatrist or psychologist who would provide treatment, if the condition is claim-related and treatment is necessary, would tip the balance too far in New Hampshire’s favor. By seeking an examination with Dr. Stratford at this stage, New Hampshire is asking Dr. Stratford to make the decision as to whether Neisinger’s conditions are compensable, on which New Hampshire will rely. ...

...

Thus, to balance Neisinger’s right to an evaluation by a psychiatrist or psychologist who owes him a duty of care, and would provide treatment if necessary, and New Hampshire’s right to obtain independent opinions and information, New Hampshire must first authorize Neisinger to see a psychiatrist or psychologist who will evaluate him and provide treatment if necessary.

(Emphasis added.)²

STANDARDS OF REVIEW

¶12 Pursuant to Admin. R. M. 24.5.350 (2019) and the Montana Workers’ Compensation Act (WCA), a party may appeal a decision by DLI to the WCC. The WCC reviews DLI decisions under § 2-4-704(2), MCA. Although the WCC "may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact," the WCC may reverse or modify a DLI decision if a party’s substantial rights have been prejudiced because:

(a) the administrative findings, inferences, conclusions, or decisions are:

(i) in violation of constitutional or statutory provisions;

(ii) in excess of the statutory authority of the agency;

(iii) made upon unlawful procedure;

(iv) affected by other error of law; (v) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record;

(vi) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or

(b) findings of fact, upon issues essential to the decision, were not made although requested.

Section 2-4-704(2), MCA.

¶13 This Court reviews the WCC’s conclusions of law for correctness. Mont. State Fund. v. Liberty Nw. Ins. Co. , 2018 MT 188, ¶ 12, 392 Mont. 221, 425 P.3d 646 ; Flynn v. Mont. State Fund , 2011 MT 300, ¶ 9, 363 Mont. 55, 267 P.3d 23 (citations omitted). Interpretation and construction of a statute is a matter of law. Madrid v. Zenchiku Land & Livestock , 2002 MT 172, ¶ 5, 310 Mont. 491, 51 P.3d 1137.

DISCUSSION

¶14 Issue One: Whether Neisinger’s complaints of anxiety and insomnia provide a basis to require a psychiatric examination under § 39-71-605, MCA, before it is established that the complaints are related to his workers’ compensation claim.

¶15 Under the WCA, insurers are liable for the payment of compensation to the employee of an employer covered under a designated plan who sustains an injury arising out of and in the course of employment. Section 39-71-407(1), MCA. A claimant "bears the burden of proving by a preponderance of the evidence that he is entitled to the workers’ compensation benefits sought." Ford v. Sentry Cas. Co. , 2012 MT 156, ¶ 34, 365 Mont. 405, 282 P.3d 687 (citing Simms v. State Comp. Ins. Fund , 2005 MT 175, ¶ 13, 327 Mont. 511, 116 P.3d 773 ). "This includes establishing a ‘causal connection’ between his injury and the right to benefits." Ford , ¶ 34 (citing Fellenberg v. Transp. Ins. Co. , 2005 MT 90, ¶ 16, 326 Mont. 467, 110 P.3d 464 ; Narum v. Liberty NW Ins. Co. , 2009 MT 127, ¶ 28, 350 Mont. 252, 206 P.3d 964 ); Best v. State Comp. Ins. Fund , 276 Mont. 302, 305, 916 P.2d 108, 110 (1996) (citations omitted).

¶16 Section 39-71-605, MCA, of the WCA sets forth procedures for an insurer to obtain a medical examination of a claimant. It provides, in pertinent part:

(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

...