This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


Sharon Marie Swan,


Milwaukee Guardian Insurance,

Filed November 23, 1999
Amundson, Judge

Ramsey County District Court
File No. C4-97-4976

Roger R. Roe, Jr., Keith A. Queensen, and Michael L. Weiner, Yaeger, Jungbauer, Barczak & Roe, PLC, 701 Fourth Avenue South, Suite 1400, Minneapolis, MN 55415 (for respondent)

Marianne Settano, 1935 West County Road B2, Suite 245, Roseville, MN 55113 (for appellant)

Considered and decided by Amundson, Presiding Judge, Lansing, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


Insurance company challenges the district court's finding that insured's refusal to attend an independent medical examination (IME) was reasonable, and its conclusion that insurance company was not prejudiced by insured's refusal to attend the IME prior to surgery. We affirm.


Respondent Sharon Swan was injured as a result of an automobile accident caused by a negligent motorist on March 27, 1996. Appellant Milwaukee Guardian Insurance Company was Swan's no-fault insurer.

After approximately three months of conservative care with Dr. Conrad Butwinick that did not relieve Swan's back and neck pain, she began seeing Dr. John Stark, an orthopedic surgeon. Dr. Stark ordered an MRI, and then determined that lumbar decompression surgery was necessary to repair torn discs. On June 24, 1996, Swan informed Milwaukee that this surgery with Dr. Stark was scheduled for August 8, 1996. Milwaukee first decided to have Dr. Paul Cederberg perform a paper review of Swan's medical records. Then, upon learning on July 24, 1996, that Dr. Cederberg could not form an opinion as to whether the surgery was reasonable, necessary, and causally related to the automobile accident without seeing Swan, requested that she attend an IME before undergoing surgery. The possible dates given for the IME were during the week immediately prior to the date scheduled for surgery. Swan refused to attend, due to intractable pain, confusion as to location of the IME, conflicts with work she was performing at home, and fear the examination might result in delay of her surgery. At this point, Dr. Stark's office obtained pre-approval for Swan's surgery from her health insurer, Blue Cross/Blue Shield of Minnesota, which later subrogated Milwaukee.

On July 25, 1996, after learning of Swan's refusal to attend a pre-surgery IME, Milwaukee suspended no-fault benefits until such time as Swan would comply with its request. At this time, Swan offered to attend a post-surgery IME, but Milwaukee determined that it would be impossible to obtain a valid medical opinion as to necessity and causation for the lumbar surgery after it had taken place. Although not listed as a permitted sanction in the insurance contract, Milwaukee then terminated, without notice to Swan, all no-fault benefits based on Swan's breach of her insurance contract and the resulting prejudice to the insurer.

Swan brought a lawsuit against Milwaukee for breach of contract, and the matter was tried to the court on August 10-12, 1998. The district court found that Swan's refusal to attend an IME one week prior to her scheduled surgery was not unreasonable under the circumstances, and concluded that Milwaukee failed to demonstrate prejudice as a result of Swan's refusal. Accordingly, the district court concluded Swan was entitled to medical expense and wage replacement benefits.


This court will not set aside findings of fact unless clearly erroneous. Minn. R. Civ. P. 52.01. A district court's findings of fact are not deemed to be clearly erroneous unless, after a full review of the evidence, the reviewing court is "left with the definite and firm conviction that a mistake has been made." In re Guardianship of Dawson, 502 N.W.2d 65, 68 (Minn. App. 1993) (quoting Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn. 1987)), review denied (Minn. Aug. 16, 1993).

I. Reasonableness of Refusal to Attend Independent Medical Examination

Both the Minnesota No-Fault statute and the Milwaukee insurance policy require an insured to attend an independent medical examination at the insurer's request; however, the right to have the insured submit to an IME is not absolute, but qualified by a requirement of reasonableness. Minn. Stat. § 65B.56, subd. 1 (1998) provides:

Any person with respect to whose injury benefits are claimed under a plan of reparation security shall, upon request of the reparation obligor from whom recovery is sought, submit to a physical examination by a physician or physicians selected by the obligor as may reasonably be required.

* * * *

If the claimant refuses to cooperate in responding to requests for examination and information as authorized by this section, evidence of such noncooperation shall be admissible in any suit or arbitration filed for damages for such personal injuries or for the benefits provided by sections 65B.41 to 65B.71.

The Milwaukee insurance policy held by Swan contains the provision:

A person claiming any coverage of this policy must also:

* * * *

3. Submit to physical examinations at our expense by doctors we select as we may reasonably require.

In addition, this court has recently held that "an insured must attend a section 65B.56 examination that is reasonable in time, location and circumstances, and the insurer may suspend payment of benefits until the insured complies." Hovland v. State Farm Ins. Cos., 593 N.W.2d 271, 274 (Minn. App. 1999). The "reasonableness" of the insured's refusal to attend an IME is a factual determination. Id. at 273 (citing Neal v. State Farm Mut. Ins. Co., 529 N.W.2d 330, 333 (Minn. 1995)). Swan testified that her reasons for not attending an IME scheduled the week prior to her surgery were primarily intractable pain and fear the examination might result in delay of her surgery. The district court found that given the pain to which Swan testified and the close proximity between the proposed IME dates and the August 8 surgery, Swan's decision not to attend the IME was "not unreasonable under all of the circumstances."

We conclude that the district court's finding that Swan's refusal to attend the IME prior to surgery was reasonable was not clearly erroneous.

II. Prejudice to the Insurer

Milwaukee argues that it has been prejudiced by Swan's refusal to attend an IME prior to her first surgery because that surgery structurally altered her bones and ligaments, thus making it impossible to determine causation and necessity for the surgery.

Prior to her lumbar decompression surgery, Swan offered to attend a post-surgery IME, but Milwaukee refused her offer for the reason stated above and terminated her no-fault benefits as of August 8, 1996. Swan also offered to attend IMEs before her second and third surgeries; these offers were also refused. However, examinations after surgery are valid and often seen in insurance, workers' compensation, and malpractice cases. See, e.g., Bastian v. Ceco Corp., 523 N.W.2d 665, 667 (Minn. 1994) (doctor who examined Bastian after disc surgery believed there was no question that surgery was necessary, but need for surgery was not related to injury at issue). Consequently, we reject Milwaukee's "spoliation of the evidence" argument as a basis for finding prejudice.

If Swan had waited until after the surgery to notify Milwaukee, Milwaukee would have been obligated to pay the bills for the surgery or could have required an IME at that time. See Minn. Stat. § 65B.44, subds.1, 2 (1998) (insurance obligor is responsible for the payment of medical expense benefits that are reasonable, necessary, and causally related to the no-fault automobile accident), 65B.54, subd. 1 (1998) (loss accrues as medical expense is incurred; benefits overdue if not paid within 30 days after obligor receives proof of loss). Because pre-surgery notice is not required, Milwaukee has not met its burden of demonstrating prejudice as a result of Swan's refusal to attend a pre-surgery IME.

Milwaukee also claims prejudice because the district court concluded that the opinions of expert witness, Dr. Cederberg, were sufficient for Milwaukee's defense, especially since Dr. Cederberg had stated that he was unable to offer an opinion without seeing Swan. Nevertheless, on cross-examination, Dr. Cederberg testified to having formulated an opinion based on Swan's medical records that the physical findings were not convincing regarding any documented indication for spinal decompression surgery. Milwaukee argues this was only a preliminary opinion, insufficient for Milwaukee's defense, as evidenced by the district court's failure to deem it credible.

As reflected in its findings of fact, the district court did take into consideration Dr. Cederberg's opinion regarding the first surgical procedure. The district court found that the overwhelming weight of the evidence was contrary to Dr. Cederberg's opinion. Evidently, the district court deemed the opinions of Dr. Stark and Dr. Gaylan Rockswold more credible. Both Dr. Stark and Dr. Rockswold determined the surgery to be reasonable, necessary, appropriate, and causally related to the automobile accident. We also note that Dr. Thomas Murphy, the neurologist who conducted the IME for the other driver's insurance company following the first two surgeries, reached this same conclusion. Because Dr. Cederberg testified as to his opinion, and that opinion was considered by the district court in making its findings, Milwaukee was not prejudiced.

We agree with the district court that Milwaukee failed to demonstrate prejudice as a result of Swan's failure to attend an IME prior to her first surgery.