Roberts v. Arch Ins. Co.

1

2024 MTWCC 5

SONJA ROBERTS Petitioner v. ARCH INS. CO. Respondent/Insurer.

No. 2023-00278

Court of Workers Compensation of Montana

April 16, 2024

Submitted: March 11, 2024

ORDER GRANTING RESPONDENT'S MOTION TO COMPEL IME

Lee Bruner Judge

Summary Respondent moves to compel Petitioner to attend an IME and complete certain paperwork as part of the process. Petitioner agrees to attend the IME. However, she contends that nothing in § 39-71-605, MCA, requires her to fill out and/or sign IME-related documents and that forcing her to do so would violate her right to privacy under Article II, Section 10 of the Montana Constitution.

Held Respondent's Motion to Compel is granted subject to the following conditions. Petitioner must attend the IME and is required to sign the provider's Informed Consent document as part of the IME process. However, Petitioner is not required to sign the Frequently Asked Questions document or take any action associated with the HIPAA Notice of Privacy Practices document.

¶ 1 Respondent Arch Ins. Co. moves to compel Petitioner Sonja Roberts to attend an independent medical examination (IME) with John C. Schumpert, MD, MPH, of Resources for Environmental and Occupational Health (REOH) in Missoula and to complete certain paperwork as part of the process.

¶ 2 Petitioner agrees to attend the IME. However, she contends that she is not required to fill out and/or sign any IME-related documents. Petitioner's argument is twofold. First, she asserts that nothing in § 39-71-605, MCA requires her to do paperwork in order to fulfill her obligation to submit to an examination. Second, she asserts that forcing her to do so would violate her right to privacy under Article II, Section 10 of the Montana Constitution.

¶ 3 This matter was submitted for decision following a hearing in Helena on March 11, 2024, in which both parties made oral arguments on Respondent's Motion to Compel.

Background

¶ 4 Petitioner alleges that she suffered injuries after slipping and falling in her employer's parking lot on February 21, 2023.

¶ 5 Petitioner further alleges that she aggravated those injuries while lifting at work on March 27, 2023.

¶ 6 Respondent, which insured Petitioner's employer at all relevant times, accepted liability for her claims.

¶ 7 The parties, however, dispute Petitioner's entitlement to indemnity benefits.

¶ 8 Petitioner filed a Petition for Hearing on December 21, 2023, seeking medical and indemnity benefits, as well as costs, attorney fees, and a penalty.

¶ 9 On January 4, 2024, Respondent notified Petitioner that she was scheduled for an IME with Dr. Schumpert in Missoula on January 23, 2024.

¶ 10 The same day, January 4, 2024, Petitioner sent Respondent a letter objecting to the Missoula IME on three grounds: the IME was not in her home city of Great Falls, Respondent had not given her enough advanced notice of the appointment, and Respondent must first allow her to see a treating provider prior to an IME.

¶ 11 On January 18, 2024, Respondent canceled the IME, and rescheduled it for February 22, 2024, in Great Falls.

¶ 12 On January 22, 2024, Petitioner agreed to attend the IME so long as all "raw data" would be preserved, Petitioner would not be required to sign any paperwork, and her personal physician would be allowed to attend.

¶ 13 On February 5, 2024, Respondent sent Petitioner the paperwork that Dr. Schumpert would require her to complete.

¶ 14 On February 9, 2024, Petitioner responded that she would not complete any paperwork.

¶ 15 On February 13, 2024, Respondent canceled the IME based on the parties' dispute over paperwork.

Discussion

¶ 16 For the reasons that follow, Respondent's Motion to Compel is granted; Petitioner must attend the IME subject to the conditions set forth below.

Location of the Examination

¶ 17 As Respondent has agreed to schedule the IME in Great Falls, this issue appears to be resolved.

Attendance of Petitioner's Own Physician

¶ 18 As Respondent has agreed to an IME where Petitioner's physician may attend, this issue appears to be resolved.

Preservation of All Raw Data

¶ 19 As Respondent has agreed to preserve all raw data, this issue appears to be resolved.

Documents To Be Completed as Part of the IME Process

¶ 20 Respondent alleges that Dr. Schumpert cannot conduct the IME unless Petitioner completes three associated documents. Each of the documents at issue, including the "Frequently Asked Questions" document, the "HIPAA Notice of Privacy Practices" document, and the "Informed Consent" document, was prepared by REOH.^[1]

¶ 21 Petitioner alleges that § 39-71-605, MCA, contains no requirement that a claimant fill out/sign authorizations acknowledgements, or other paperwork.

¶ 22 The question becomes, what of the REOH offered documents are a necessary part of the IME examination.

¶ 23 Petitioner phrases the issue as follows. "The only issue presented for the Court's consideration is whether Roberts must sign 'all required paperwork associated with an IME,' which according to Arch, is determined by REOH and is non-negotiable."^[2]

¶ 24 Section 39-71-605, MCA, is clear that Respondent is entitled to an IME as part of the claims process. The statute provides:

(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. Any physician, psychologist, or panel employed by the insurer or the department who makes or is present at any examination may be required to testify as to the results of the examination.

(2) In the event of a dispute concerning the physical condition of a claimant or the cause or causes of the injury or disability, if any, the department or the workers' compensation judge, at the request of the claimant or insurer, as the case may be, shall require the claimant to submit to an examination as it considers desirable by a physician, psychologist, or panel within the state or elsewhere that has had adequate and substantial experience in the particular field of medicine concerned with the matters presented by the dispute. The physician, psychologist, or panel making the examination shall file a written report of findings with the claimant and insurer for their use in the determination of the controversy involved. The requesting party shall pay the physician, psychologist, or panel for the examination.

(3) As used in this section, a panel includes a practitioner having substantial experience in the field of medicine concerned with the matters presented by the dispute and whose licensure would qualify the practitioner to act as a treating physician, as defined in 39-71-116, and may include a psychologist.

(4) A claimant is required, upon a written request of an insurer, to submit to a functional capacities evaluation conducted by a licensed physical or occupational therapist.

¶ 25 The Montana Supreme Court has provided general guidance, which is applicable to the question of what information Petitioner is required to provide as part of the IME process. The court has previously held that, "a workers' compensation claimant waives confidentiality to his healthcare information 'for purposes relevant to [his] claim' and, within that framework, the claimant agrees to submit to medical examinations 'appropriate to the handling of the claim.' "^[3]

¶ 26 Thus, paperwork attendant to an IME that asks for Petitioner's healthcare information must have a purpose appropriate to the handling of the claim.

¶ 27 We turn now to examine the three documents at issue.

¶ 28 Petitioner alleges that the Frequently Asked Questions document asserts facts that Petitioner does not agree with. For example, the document states that the examination is "unbiased [and] impartial." This Court sees no requirement that the Petitioner sign this document prepared by REOH as a prerequisite to the IME examination. Petitioner is not required to sign this document as part of the IME process.

¶ 29 The HIPAA Notice of Privacy Practices document contains, within it, no requirement that Petitioner agree to the notice, sign that she has read and understands it, or take any other action. Respondent alleges that it is federal law that the notice be provided. That may be true. However, if documentation of the fact that it was provided to Petitioner is needed, this may be met by the provider noting in the medical record that it was provided. There is no issue here preventing an IME. A copy may be offered to Petitioner. Petitioner is not required to accept it nor agree to it.

¶ 30 As to the substance of the HIPAA form, Petitioner argues in her brief as follows:

. . . REOH admits that each examinee has the right to "tell us your choices

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