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Liberty Northwest Insurance Corp. v. Marquardt10/30/2003
ME is not unlimited. Section 39-71-605, MCA, must be construed in the context of the purposes of those procedures. See Hern Farms, Inc. v. Mutual Benefit Life Ins. Co., 280 Mont. 436, 441, 930 P.2d 84, 87 (1996) ("In interpreting a statute, the prime consideration must be defining the objectives the legislature sought to achieve."). The plain purpose of section 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. In line with that purpose, they cannot be demanded for arbitrary or whimsical reasons. Thus, an insurer cannot compel repeated examinations simply because it does not like the results or opinions from the prior ones. On the other hand, an insurer is entitled to obtain a second, third, or even more IMEs or FCEs where there is an indication that claimant's medical condition has changed or there is some other sound reason for doing a repeat examination; for example, where the prior examination did not address the current medical issue.
In this case, Liberty has attached a letter of its IME physician, Dr. John C. Schumpert, indicating his desire for an FCE to "expedite review of the Job Analyses that have been submitted to me and assignment of permanent restrictions if they are indicated." (Ex. A to Liberty's Motion for Summary Judgment.) It is not clear whether Dr. Schumpert was furnished a copy of the September 2001 FCE or why he believes a new FCE is required. However, Liberty argues that the prior FCE was insufficient because the FCE examiner "only performed FCE to be aware of safety and abilities" and did not review actual job analyses. (Liberty's Brief in Opposition to Summary Judgment at 1-2.) I am not persuaded.
A copy of the September 2001 FCE report is attached to claimant's Response, Motions for Summary Judgment & Brief in Support. The report indicates that the FCE was a "standardized" FCE. It charts claimant's physical capacities in numerous respects in terms of pounds and duration. It provides specific restrictions and recommendations. The report also summarizes the claimant's significant abilities and deficits. The report does not appear on its face to be inadequate for purposes of determining whether particular jobs are appropriate for her. I am therefore unable to say, as a matter of law, that the report is insufficient or incomplete, or that there is sufficient justification to order another FCE. Nor am I able to say, as a matter of law, that Liberty is not entitled to a further FCE. Claimant has offered nothing by way of unrefuted evidence to show that her situation is unchanged or that the FCE is fully adequate to allow Dr. Schumpert to evaluate job analyses. Summary judgment for either party is therefore inappropriate and must be denied.
B.
Claimant urges that the FCE is barred by the doctrine of res judicata. The argument is based on the prior agreement reflected in the Court's minute entry of August 15, 2001. Assuming that the minute entry constitutes a judgment of the Court, the argument is without merit. The agreement certainly settled the insurer's right to an FCE at that time but did not purport to bar all future FCEs.
C.
Claimant further requests summary judgment barring any further FCEs. This request is also without merit. Whether a new FCE is appropriate depends on the facts and circumstances at the time of the request. Even if the insurer fails to demonstrate a justification for an FCE at the present time, an FCE at a future time may be justified if, for example, the cl
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