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 

JVAR 2 8 1991 Decided: March 28, 1991 

~iled: 

A' CLERK OF ShlPREPdfE COURT 

STATE OF MOlilYAfJA 

I 

'Clerk 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Mary Anne Young appeals an order of the Workers Compensation 

Court denying her the right to refuse to submit to an examination 

by an independent medical panel. We affirm. 

The issue is whether a claimant has the right to refuse to 

attend and be examined by an independent medical panel because her 

attorney is suing the chairman of the panel and the clinic for 

malpractice. 

Claimant Mary Anne Young filed a claim for workersg compensation benefits for a September 26, 1987, industrial injury arising 

out of her employment. In March 1990, the State Compensation 

Mutual Insurance Fund (State Fund) notified Young that she had been 

scheduled for an independent medical evaluation by the Yellowstone 

Valley Medical Evaluation Panel. The evaluation was to occur May 

7 through May 10, 1990. 

In April 1990, Young's attorney requested in writing 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examination be rescinded because he had a malpractice action 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 s attorney then filed a request for mediation of the dispute. 

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. 

On May 31, 1990, Young filed an emergency petition before the 

Workersf Compensation 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 in writing 

that it would continue to pay her benefits, under a reservation of 

rights to a refund of benefits paid from the time of her refusal 

to attend the medical examination. 

The Workers' Compensation Court determined that under 5 39- 

71-605, MCA, Young did not have the right to refuse to submit to 

the medical examination. The court stated that Youngfs safeguards 

against bias or unfairness in the examination are her right to have 

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 employee by 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 examination by a physician or 

panel of physicians, who shall be provided and 
paid for by such insurer, and shall likewise 

submit to examination from time to time by 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 

employee and his physical condition and ability to attend at the time and place fixed. The 

employee shall be entitled to have a physician 

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. 

Young maintains that forcing her to submit to an examination by 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 a panel. 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 law now 

stands, we agree with the Workers1 Compensation Court that 5 39- 

71-605, MCA, clearly gives the insurer the right to a physician or 

panel of its own choosing. 

Affirmed. 

We concur: