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Insurer cannot compel worker to undergo psychiatric evaluation


An insurer cannot compel a worker to undergo a psychiatric evaluation for symptoms unlikely to be related to a workplace injury, the Montana Supreme Court held Tuesday in a unanimous decision.

In Neisinger v. New Hampshire Ins. Co., the court affirmed part of a Montana Workers Compensation Commission decision but reversed the decision in part when it denied the worker’s request for psychological treatment, if necessary, because he could not show it was casually related to his workplace injury.

On May 27, 2015, Michael Neisinger sustained injuries to his left leg and quadricep after a high-pressure stream of water hit his left leg and knocked him off a platform at work. The insurer, New Hampshire Insurance Co., a member company of New York-based American International Group Inc., accepted liability for his injury, and in June 2016, a physician determined that he was at medical maximum improvement.

In October 2017, Mr. Neisinger reported an increase in left knee pain, which he had experienced since his leg surgery after the accident. He was referred to a pain management specialist, who noted that Mr. Neisinger claimed that he suffered pain as well as anxiety disorder.

The insurer scheduled a psychological exam, which Mr. Neisinger refused to attend on the basis that the insurer did not have good cause for compelling the exam. 

In March 2018, the insurer scheduled another exam with both the psychologist and an orthopedist, and the Montana Department of Labor and Industries ordered that Mr. Neisinger be examined by the orthopedist for a diagnostic update of his medical problems. He appealed the order and the Montana Workers Compensation Commission reversed the directive in part and affirmed it in part, concluding that the insurer could not require Mr. Neisinger to undergo a psychological exam because it would “tip the balance too far in New Hampshire’s favor” by asking the doctor to “make the decision as to whether (Mr.) Neisinger’s conditions are compensable.” The commission said the insurer must first authorize Mr. Neisinger to see a psychologist to evaluate him and provide treatment before determining whether such treatment was reasonably related to his accident and compensable.

The insurer appealed the commission decision. The Montana Supreme Court affirmed the ruling that the insurer could not compel Mr. Neisinger to undergo a psychological examination, holding that nothing in the record suggested that Mr. Neisinger’s anxiety or insomnia were causally related to his industrial injury, and that the commission erred in ordering New Hampshire to “authorize” Mr. Neisinger to see a psychologist to evaluate him and provide treatment if necessary.

The court held that just because anxiety and insomnia were noted during a workers compensation-covered examination, the insurer is not entitled to an exam when “nothing indicates a condition or diagnosis is related to the accepted claim.”

Similarly, the court held that requiring the insurer to pay for an exam and treatment of a disputed condition is “fundamentally flawed because a claimant is not entitled to any benefits, including a medical evaluation, until he satisfies his burden of proof.”

Although Mr. Neisinger argued that the cost of a psychiatric evaluation was “miniscule” in comparison to the cost of denying a claim, the court held that the cost was not the issue, but rather “whether the treatment is claim-related.”





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