Neisinger v New Hampshire Ins Co: MT WC - Ability To Compel Defense IME Found Against Insurer In Favor Of Injured Worker

March 25, 2025

In Neisinger v New Hampsire Ins Co (NHIC), the MT Workers’ Compensation Court (WCC) reversed a Departmental ruling finding that the injured worker was unreasonable in failing to attend an IME appointment and a consultation regarding ketamine treatment. The DOL&I found, based upon the finding of unreasonableness, that temporary suspension of Temporary Total Disability ("TTD") benefits was appropriate. On March 25, 225, the WCC determined the Department’s decisions were incorrect.

The full WCC ruling is published at Neisinger_2025MTWCC1.pdf .

 Neisinger suffered a workplace injury and allegedly developed mental health conditions as a result. In Montana, in general terms, a mental / physical claim is most times covered. This appeared to be such a case. NHIC accepted liability for the claim and began payment of benefits. Current Montana law in WC requires that the primary treating physician 'concur' with a defense medical opinion for it to be applicable to the claim / benefits. Some while later, IMEs requested by NHIC disagreed with the ongoing treatment approach, with which the treating physicians disagreed. About a year later, NHIC again requested an out-of-town IME and a consultation with a different provider to review the potential of continued ketamine treatment.

 Neisinger objected to the IME based on the location of the physician and current statute requiring that the scheduling of an IME consider, “…the employee’s convenience, physical condition, and the ability to attend at the time and place that is as close to the employee’s residence as is practical.” The Department disagreed with Neisinger, and found his failure to attend the IME unreasonable. As a result, the Department also approved for the insurance company request to suspend wage loss benefits.

In March, 2025, the Workers' Compensation Court determined that New Hampshire failed to demonstrate why a more local IME provider to Neisinger could not be found. Based on that, the Court reversed the "unreasonable failure to attend" finding. Since the alleged unreasonable refusal to attend the IME, which was the basis for temporary termination of benefits was no longer valid, the suspension of benefits was no longer appropriate either and ordered the retroactive payment of the suspended benefits. 

Impact

With the number of physicians working in the Independent Medical Evaluation ("IME") space in Montana Workers' Compensation shrinking, it can be a challenge to get an IME, common in many other states, to defend some or all of a WC claim.  Obtaining an IME in a timely basis has become equally difficult. The process that might include having the worker travel to another city or state has been a difficult area for claims management, made more difficult with this decision.