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Lydon v. Sprinkler Services2/12/2004
Reporter of Decisions
Argued: March 12, 2003
Majority: SAUFLEY, C.J., and RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.
Dissent: CLIFFORD and LEVY, JJ.
We are called upon to determine whether a physician may be appointed to serve as an independent medical examiner in a workers' compensation proceeding, pursuant to 39-A M.R.S.A. § 312 (2001), if that physician has performed examinations of other employees at the request of an employer, insurer, or employee, pursuant to 39-A M.R.S.A. § 207 (2001 & Supp. 2003). In the matter before us, a hearing officer of the Workers' Compensation Board (McCurry, HO), denied Joseph Lydon's petition for award and did so in reliance on the opinion of an independent medical examiner who had conducted examinations of other employees pursuant to 39-A M.R.S.A. § 207 within fifty-two weeks prior to examining Lydon. See 39-A M.R.S.A. § 312(2). We conclude that the physician was ineligible to serve as an independent medical examiner and vacate the decision.
I. BACKGROUND
In August 2001, Lydon filed petitions for award and to fix medical payment for an alleged work-related back injury on April 7, 1999, during his employment with Sprinkler Services. Lydon did not need medical care immediately after the alleged injury, but experienced problems in early May and underwent back surgery on May 27, 1999, to remove a synovial cyst.
The parties' experts disagreed as to whether the cyst or the aggravation of Lydon's back injury were work related. As a result of this dispute, Sprinkler Services sought the appointment of an independent medical examiner (IME) pursuant to 39-A M.R.S.A. § 312. When the parties could not agree on an IME, the hearing officer appointed an IME to examine Lydon. See 39-A M.R.S.A. § 312(3) (2001).
Lydon objected to the physician appointed as the IME, alleging that the doctor had performed a number of section 207 examinations on behalf of employers in the preceding fifty-two weeks and was therefore not sufficiently independent. In response to this objection, the hearing officer granted Lydon's request to serve the IME with interrogatories requesting information concerning the number of section 207 examinations the doctor performed in the preceding fifty-two weeks, "who he did them for and the amount of money that he was paid."
The IME declined to respond to the interrogatories, was not forthcoming during his subsequent deposition, and refused to answer most of the questions concerning the sources of his professional income that were related to workers' compensation . He did, however, give limited answers at the hearing, estimating that 20% of his practice is devoted to performing medical examinations for legal purposes, which included both section 207 examinations and section 312 examinations, and which accounted for approximately 10% of his income (with no indication of the amount of his income). He declined to give an approximation of the proportion of the examinations devoted to section 207 examinations as opposed to section 312 examinations. He declined to give even minimal information concerning how much money he earned in the preceding year for performing section 207 examinations at an employer's request.
Notwithstanding the doctor's testimony that he had performed numerous section 207 examinations within the past year, and notwithstanding his refusal to provide information necessary to a separate assessment of his possible conflicts of interest, the hearing officer ultimately relied on the IME's opinion in denying Lydon's petition. In so doing, the hearing officer concluded in essence that neither the workers' compensation statu
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