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Chapter 4 Independent Medical Examiner

§ 1. Creation of Independent Medical Examiner System Pursuant to 39-A M.R.S.A. §312.

1. To be eligible to participate in the Board appointed independent medical examiner program, health care providers must meet the criteria of this subsection. 

A. The provider must be licensed/certified by the State of Maine.

B. The provider must have an active, treating practice, be Board certified, and demonstrate experience in the treatment of work-related injuries.

C. The provider must demonstrate superior qualifications and experience in their particular fields of expertise.

2. Participation of health care providers in the independent medical examiner system is limited to those providers practicing in health care specialties most commonly used by injured employees. The Deputy Director of Medical/ Rehabilitation Services may submit for the Board's review and approval a breakdown of specialists within the 50 slots. Geography may also be a consideration for initial appointment. 

3. All health care providers interested in participating in the independent medical examiner system must file an with the Office of Medical/Rehabilitation Services, Workers' Compensation Board, 27 State House Station, Augusta, Maine 04333. At the Board's direction, the Deputy Director of Medical/ Rehabilitation Services will forward  curriculum vitae to the Board when vacancies occur. Examiner candidate applications are considered public information. The Board may request additional information from applicants. The Board may conduct its selection process in executive session consistent with the public right to know statute. Not more than 50 health care providers will be selected to serve at any given time.

4. The Deputy Director of Medical/Rehabilitation Services will annually review the performance of independent medical examiners for compliance with the criteria contained in this subsection and forward any concerns in a report to the Board. The Board may contract for additional services to assist in the evaluation process. Failure by the examiner to adhere to the following criteria may result in their removal at any time from the independent medical examiner list. Affirmative action of the Board is necessary to remove an independent medical examiner from the panel. 

A. Reports must be submitted in a timely manner. 

B. Reports must contain the examiner's findings on the medical issues raised by the case.

C. Reports must provide a description of findings sufficient to explain the medical basis of those findings.

D. Examiners must consider all of the medical evidence submitted by the parties.

E. Examiners must act in compliance with the requirements of the law and these regulations.

§ 2. Assignment of Independent Medical Examiners Pursuant to 39-A M.R.S.A. §312

1. If the parties agree to the selection of a particular independent medical examiner, they shall file a form prescribed by the Board with the Office of Medical/Rehabilitation Services, Workers' Compensation Board, 27 State House Station, Augusta, Maine 04333. If the employee is unrepresented by counsel, the independent medical examiner agreed upon must be chosen from the Board's list of independent medical examiners or approved by the Deputy Director of Medical/Rehabilitation Services.

2. If the parties do not agree to the selection of a particular independent medical examiner, the Board through the Deputy Director of Medical/Rehabilitation Services shall assign one from the list of qualified examiners. If the list does not contain a qualified examiner, the Deputy Director of Medical/Rehabilitation Services may select a qualified medical examiner of his/her choice. A hearing officer may also request an independent medical examination. The requesting party must: 

A. Complete Board Form M-2 and file it with the Office of Medical/Rehabilitation Services, Workers' Compensation Board, 27 State House Station, Augusta, Maine 04333.

B. Attach to Board Form M-2 a joint medical stipulation containing all medical records and other pertinent information, including an index of all treating health care providers and examinations performed under 39-A  M.R.S.A. §207 since the date of injury.

3. Assignment of a Board appointed independent medical examiner in a particular case will be performed by the Deputy Director of Medical/ Rehabilitation Services from the list of Board approved independent medical examiners with possible input from the individual hearing officer. The assignment will be made from a relevant area of specialty for the medical issues in question. The time it takes to schedule an examination may be a consideration in the selection. If a particular provider on the independent medical examiner list is precluded by rule or statute from acting as an independent medical examiner in the parties' case, the parties should notify the Board prior to the selection process.

4. A Board appointed independent medical examination under 39-A M.R.S.A. §312 may be requested only after an unsuccessful mediation or after a request for a provisional order has been acted on and the case must be proceeding to the formal hearing level.

5. Parties are limited to one Board appointed independent medical examiner per medical issue unless significant medical change can be shown.

6. Disqualification and Disclosure in Individual Cases. 

A. The independent medical examiner in a case may not be the employee's treating health care provider and may not have treated the employee with respect to the injury for which the claim is being made or benefits are being paid.

B. A physician who has examined the employee at the request of an insurance company, employer, or employee in accordance with 39 A M.R.S.A. §207 during the previous 52 weeks is not eligible to serve as the independent medical examiner.

C. The independent medical examiner must disclose potential conflicts of interest that may result from a relationship(s) with industry, insurance companies, and labor groups. A potential conflict of interest exists when the examiner, or someone in their immediate family, receives something of value from one of these groups in the form of an equity position, royalties, consultantship, funding by a research grant, or payment for some other service. If the independent medical examiner performs equivalent examinations as an employee of another organization, potential conflicts of interest may arise from that organization's contracts with industry, insurance companies, and labor groups. The Executive Director or the Executive Director’s designee shall determine whether any conflict of interest is sufficiently material as to require disqualification in the event of initial disclosure. In the event an undisclosed conflict of interest is revealed during the hearing process, the hearing officer may disqualify the independent medical examiner and order a new examiner which shall be assigned in accordance to this rule. 

§ 3. Procedures for Independent Medical Examinations Pursuant to 39-A M.R.S.A. §312

1. Questions relating to the medical condition of the employee may be requested by use of Board Form M-2. The requesting and opposing parties must set forth the questions they wish to ask the examiner on the Board's Form M-2. 

2. Except in fatality cases, the independent medical examiner is required to perform at least one examination of the employee. 

3. Contacts with the employee by the Board appointed independent medical examiner will be limited to the scheduling of examinations and actual examinations. All communication between the examiner and the parties must be in writing and except for questions which a party requests that the examiner address in the report, may only occur by agreement or with the permission of the hearing officer. Any such communication must be copied to all opposing parties not later than seven (7) days prior to any examination. This communication must be forwarded to the examiner through the Office of Medical/Rehabilitation Services. 

4. The parties shall submit a joint medical stipulation containing all medical records and other pertinent information, including an index of all treating health care providers and examinations performed under 39-A M.R.S.A. §207 since the date of injury to the Office of Medical/Rehabilitation Services with the M-2. All medical records must be in chronological order, or chronological order by provider. All medical information will be submitted to the selected physician by the Office of Medical/Rehabilitation Services.

5. Upon completion of the final examination and all pertinent and indicated testing, the examiner shall submit a written report to the Board no later than fourteen (14) days after completion of the examination. The Board will distribute copies of the report to the employer and the employee. 

6. A party may set a deposition of the independent medical examiner only with permission of the hearing officer.

7. Pursuant to 39A M.R.S.A. §312(6), all subsequent medical evidence submitted to the examiner must be exchanged with the opposing party no later than fourteen (14) days prior to the hearing, unless this timeframe is varied by order of the hearing officer. If the examiner issues a supplemental report, a supplemental deposition may be permitted at the discretion of the hearing officer. 

§ 4. Expenses and Fees for Independent Medical Examinations under 39-A M.R.S.A. §312

1. Expenses incurred by the employee attending an independent medical examination are to be paid for by the employer. The following rates of reimbursement shall apply for travel:

A. $.26 per mile for mileage reimbursements.

B. $45.00 per evening for overnight lodging. Reimbursement for overnight lodging shall be allowed only when the employee has traveled 150 miles or more, one way, from the employee's place of residence.

C. $6.00 for breakfast, $6.00 for lunch, and $16.00 for dinner. Reimbursement for meals shall be allowed only when the employee has traveled 80 miles or more, one way, from the employee's place of residence.

D. Actual charges for tolls, accompanied by a receipt.

2. Independent medical examinations will have a maximum charge of $200.00 per hour up to a maximum of four hours for review of records and information, the performance of any necessary examinations, and the preparation of the written report. This charge does not include such diagnostic testing as may be necessary. Additional charges may be allowed with the consent of both parties or by the Deputy Director of Medical/Rehabilitation Services for good cause shown. The fee for the examination and report must be paid by the employer. 

3. If additional diagnostic tests are required, payment for such tests whether performed by the independent medical examiner or by another health care provider at the request of the examiner, shall be in accordance with the Board's Medical Fee Schedule and paid for by the employer. 

4. If the employee fails to attend the independent medical examination or if an examination is cancelled by the employee or employer within 48 hours of the scheduled time, the independent medical examiner may charge and receive up to $200, to be paid initially by the employer, subject to the right of the employer to be reimbursed by the employee if the failure to appear or the cancellation by the employee was without good cause. This determination shall be made by the hearing officer.

5. The reasonable costs of depositions of examiners, including the examiner's fees, court reporter's fees, and transcript costs, shall be borne by the requesting party.

§ 5. Application

These rules apply to all dates of injury. If any section, term, provision, or application of this Rule is adjudged invalid for any reason, such judgment shall not impair or invalidate any other section, term, provision, or application and the remainder of this Rule shall continue in full force and effect.

CHAPTER 4 EFFECTIVE DATE: January 13, 1996

AMENDED: November 1, 2001

 

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