                                 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 compensa-
tion 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examination be rescinded because he had a malpractice action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 attorney then filed a request for mediation of the dispute.
      s
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 cross-
examine 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 com-
             pensation 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 abili-
           ty 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 ex-
           amination or shall in any way obstruct the
           same, his right to compensation shall be
           suspended. Any physician or panel of physi-
           cians employed by the insurer or the depart-
           ment 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:
