Can comp carrier compel psych exam?
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 injuries to his left leg, including a rupture of his quadriceps tendon.
New Hampshire Insurance Comp-any provided workers compensation insurance for Neisinger’s employer. New Hampshire accepted liability for Neisinger’s injury. Neisinger sought treatment for his injury with Dr. John Ortiz and Dr. James Elliot.
On June 15, 2016, Neisinger underwent a medical examination 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 5% whole person impairment rating. The exam, known as a 605 exam, was conducted pursuant to a provision in the Montana Code Annotated (MCA) that requires an injured worker to submit to examinations when requested to do so in writing by the employer’s workers compensation insurer.
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.
On October 26, 2017, Neisinger returned to Dr. Elliot and reported an increase in left knee pain. Dr. Elliot concluded that Neisinger needed additional medication to control his pain and requested preauthorization for Neisinger to be seen by a pain management specialist. New Hampshire authorized the referral, and on February 8, 2018, Neisinger saw Dr. S. Dante Oriente for pain management. Dr. Oriente assessed Neisinger and recommended a psychological or psychiatric evaluation for the anxiety and sleep disturbance Neisinger reported.
New Hampshire declined to authorize such a referral. Instead, on February 12, 2018, the insurer scheduled a 605 exam with Dr. Spencer Greendyke, an orthopedist, and Dr. William Stratford, a psychiatrist.
On February 16, 2018, Neisinger notified New Hampshire that he would not attend the exam. New Hampshire then requested an order from the state department of labor and industry (DLI) directing Neisinger to attend the exam. Neisinger objected, asserting that (1) New Hampshire did not have good cause for requesting a second exam and (2) New Hampshire failed to address the statutory elements in its request for an order compelling a 605 exam, including the requirement that it set forth the place and time for the exam and requiring an exam by a doctor (Dr. Greendyke) who did not have admitting privileges at any Montana hospital. New Hampshire canceled the exam, and on March 19, 2018, DLI issued an order denying New Hampshire’s request for medical examination as moot.
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 exam panel. On March 27, 2018, DLI issued an order directing Neisinger to undergo a 605 medical examination.
On April 2, 2018, Neisinger appealed DLI’s order to the workers compensation court (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 that allowing New Hampshire to request a 605 exam before Neisinger could see a psychiatrist or psychologist would tip the balance too far in New Hampshire’s favor. By seeking a 605 examination with Dr. Stratford at this stage, the WCC order said, New Hampshire was asking Dr. Stratford to make the decision as to whether Neisinger’s conditions were compensable, on which New Hampshire would rely. Thus, New Hampshire must first authorize Neisinger to see a psychiatrist or psychologist who would evaluate him and provide treatment if necessary. New Hampshire appealed from the WCC’s order.
On appeal, the first issue was whether Neisinger’s complaints of anxiety and insomnia provided a basis for New Hampshire to require a 605 psychiatric examination before it was established that the complaints were related to his workers compensation claim.
New Hampshire argued that the WCC erred when it failed to apply the provisions of the MCA that expressly allow an insurer to obtain a medical evaluation “[w]henever in case of injury the right to a compensation would exist in favor of any employee.” New Hampshire argued that the WCC erred when it ruled that New Hampshire could not obtain a psychiatric evaluation until after it had first authorized and paid for treatment. Consequently, New Hampshire argued, the WCC exceeded its statutory jurisdiction by imposing a limitation on the insurer’s right to obtain a 605 exam that is not contained in the state workers compensation act (WCA).
Neisinger responded that New Hampshire improperly scheduled a psychiatric 605 exam before Neisinger knew if he even had a psychological condition. Accordingly, Neisinger argued that any psychiatric or psychological issue was not ripe for a 605 exam and that the WCC properly used its authority to redirect its timing. Neisinger also argued that the WCC correctly rejected New Hampshire’s suggestion that it could accept liability for an injury and then use a 605 exam to determine which, if any, treatments it would be liable for under the relevant provisions of the MCA.
Because nothing suggested that Neisinger’s complaints of anxiety and insomnia were causally related to his claim that New Hampshire accepted, the court affirmed the WCC’s denial of New Hampshire’s request for a 605 exam.
The second issue on appeal was whether New Hampshire must author-ize Neisinger to see a psychiatrist or psychologist who would evaluate him and provide treatment if necessary before New Hampshire could obtain a 605 psychiatric examination.
Just as the lack of an established causal relationship between Neisinger’s leg injury and his anxiety and insomnia did not provide New Hampshire a basis to require Neisinger to undergo a 605 psychiatric exam, the court stated, it also did not obligate New Hampshire to pay for treatment of a condition that was unrelated to the accepted claim. The WCC had no basis within the framework of the WCA to order New Hampshire to “first authorize Neisinger to see a psychiatrist or psychologist who will evaluate him and provide treatment if necessary.”
The WCC’s order was affirmed in part and reversed in part, and the case was remanded for further proceedings.
Neisinger v. New Hampshire Insurance Company—Supreme Court of Montana—November 19, 2019—DA 18-0400.