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Liberty Northwest Insurance Corp. v. Marquardt10/30/2003
ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT
Liberty Northwest Insurance Corporation (Liberty) petitions the Court for an order directing claimant to submit to a Functional Capacities Evaluation (FCE). In her amended response to the petition, the claimant opposes the FCE and requests a penalty and attorney fees for having to defend against the petition.
The Motions
Liberty has moved for summary judgment with respect to its petition. In response, the claimant requests summary judgment (1) prohibiting petitioner from seeking any further FCEs and (2) declaring claimant permanently and totally disabled. Subsequent to briefing of the motions for summary judgment, claimant filed a further motion styled "Motion to Amend Nunc Pro Tunc Prayer [Conclusion] of Motion for Summary Judgment." The requested amendment would add a claim for a 12% impairment award.
Previous Petition
A previous petition involving these parties was before this Court in Marquardt v. Liberty Northwest Insurance Corp., WCC No. 2001-0323. A trial of that case commenced in Butte on August 15, 2001. However, after extensive discussion among myself and counsel, an agreement disposing of that case was reached. The agreement, as set forth in the Court's minute entry of that date, was as follows:
The parties agreed that (1) Liberty will maintain the claimant on total disability benefits until and unless the Court orders otherwise or unless the claimant returns to work; (2) in any further court action, Liberty will bear the burden of proving claimant is not entitled to further total disability benefits; (3) claimant will cooperate in a work[-]hardening program and also with the doctors; (4) Liberty will have another FCE by a physician located in Butte, Missoula, or Bozeman; (5) Liberty will do a further vocational assessment after the claimant completes the work[-]hardening program and may provide further rehabilitation benefits in accordance with the statutes; (6) the penalty and attorney fees issues are deferred for now; and (7) Liberty will authorize claimant to see Dr. Redwine for chiropractic treatments two times per week for up to three months.
Documents submitted in connection with the present motions show that subsequent to the agreement the claimant went through a work-hardening program, following which she underwent an FCE. The FCE took place on September 27 and 28, 2001.
Discussion
I.
The claimant argues that the insurer is entitled to no further FCEs. She submits, that the "legislature intended the FCE to be only an occasional affair." (Respondent's Reply Brief in Support of Her Motion for Summary Judgment at 1.) Second, she urges that the prior agreement is res judicata and bars all further FCE requests. (Id.รท
A.
Section 39-71-605, MCA (2003), governs independent medical examinations (IMEs) and FCEs. Subsection (1) provides that a claimant must submit "from time to time" to an IME upon the request of the insurer or upon order of the Department or the Workers' Compensation Judge. Subsection (4) governs FCEs, providing:
(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.
On its face, the subsection does not limit an insurer to a single FCE, and claimant does not contend otherwise. Rather, she argues that the language of the section indicates that the right to an FCE is not unlimited and should be "only an occasional affair."
I agree with claimant that the right to an FCE is not unlimited, indeed the right to an I
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