No. 90-563 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

MARY ANNE YOUNG, Petitioner and Appellant,
v. JOHN'S IGA, Employer, and STATE COMPENSATION INSURANCE FUND, Respondent and Respondent.

APPEAL FROM: Workers' Compensation Court, The Honorable Timothy Reardon, Judge presiding.

COUNSEL OF RECORD: For Appellant: Don Edgar Burris, Esq., Billings,Montana For Respondent: Kelly OISullivan,Esq., Agency Legal Services, Helena, Montana

Submitted on Briefs: February 28, 1991 

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## 281991 Decided: March 28, 1991 ~iled:

A' CLERK OFShlPREPdfECOURT STATE OFMOlilYAfJA

I 'ClerkChief Justice J. A. Turnage delivered the Opinion of the Court. Mary Anne Young appeals an order of theWorkers Compensation Court denying her the right to refuse to submit to an examination by an independentmedical panel. We affirm. The issue is whether a claimant has the right to refuse to attend and be examinedby an independent medical panel because her attorney is suing the chairman of the panel and the clinic for malpractice. ClaimantMary Anne Young filed a claim forworkersgcompensation benefits for a September 26, 1987, industrial injury arising out of her employment. In March 1990, the State Compensation Mutual InsuranceFund (StateFund) notified Young that shehad been scheduled for an independent medical evaluationby the Yellowstone Valley Medical Evaluation Panel. The evaluation was to occur May 7 through May 10, 1990. InApril 1990,Young's attorney requested inwriting that the examination be rescinded because he had a malpractice action pending against the chairman of the panel and was contemplating another action against him. The State Fund denied that request. Youngg sattorney then fileda request formediation of thedispute. The State Fund contested the jurisdiction of the mediator. In the meantime, the appointment for the examination was confirmed with Young. The State Fund paid Young $209.20 for her travel and lodging expenses, but she did not attend the appoint-ment. On May 10, 1990, the mediator dismissed the request for mediation because no dispute over benefits was involved. OnMay 31, 1990,Young filed an emergency petition before the WorkersfCompensation Court. The case was submitted to the court on an agreed statement of facts. On June 19, 1990, before the court issued its opinion, the State Fund informed Young inwriting that itwould continue topay her benefits, under a reservation of rights to a refund of benefits paid from the time of her refusal to attend themedical examination. The Workers' Compensation Court determined that under 5 39- 71-605,MCA, Young did not have the right to refuse to submit to themedical examination. The court stated that Youngfssafeguards against bias orunfairness in the examinationareher right tohave

a physician present at the examination and her right to crossexamine the doctors at trial. It ordered that her workers1 compensation benefits be suspended from May 7, 1990, until she attends a medical examination as requested by the State Fund. Section 39-71-605, MCA, is the controlling statute. It provides: Examination of employeeby physician

# -- effect of refusal to submit to examination

# -- report and testimony of physician 

# -- cost. (1)(a) Whenever in case of injury the right to compensation under this chapter would exist in favor of any employee, he shall, upon the written request of the insurer, submit from time to time to examinationby a physician or panel of physicians,who shall be provided andpaid for by such insurer, and shall likewise submitto examination from time to timeby any physician or panel of physicians selected by the department.

(b) The request or order for such examination shall fix a time and place therefor, due regard being had to the convenience of the employeeandhisphysical conditionand ability toattend at the time and place fixed. The employee shallbe entitled tohave aphysician present at any such examination. So long as the employee, after such written request, shall fail or refuse to submit to such examination or shall in any way obstruct the same, his right to compensation shall be suspended. Any physician or panel of physicians employed by the insurer or the department who shall make or be present at any such examination may be required to testify as to the results thereof.

Youngmaintains that forcingher to submit to an examinationby the panel selected by the insurer in effect violates her right to counsel. The right to counsel is a right of criminal defendants, not civil litigants. See U.S. Const., Amend. VI and XIV; Mont. Const., Art. 11, 

### 5 24. Young also argues that she did not refuse to be examined by all panels and that other equally qualified panels are available. However, under the plain language of the statute, a claimant does not have the right to choose apanel. The insurer has that right, and bears responsibility for paying for the panel. In her brief, Young sets forth hypothetical situations in which she argues a workerst compensation claimant should have a

### right to substitution of the panel chosen by the insurer. Young may wish to address those arguments to the legislature, in support of future revision of the statutes on this subject. As the lawnow stands,we agree with the Workers1Compensation Court that 5 39- 71-605,MCA, 

### clearlygives the insurer the right to a physician or panel of its own choosing. Affirmed.



### We concur: