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Lydon v. Sprinkler Services2/12/2004
tes nor the Workers' Compensation Board Rules automatically preclude a doctor who has performed any section 207 examinations within the preceding year from acting as an IME.
The hearing officer denied Lydon's motion for findings of fact and conclusions of law, and we granted his petition for appellate review.
II. DISCUSSION
Independent Medical Examiners are governed by 39-A M.R.S.A. § 312. IMEs must be "the most qualified and . . . highly experienced and competent in their specific fields of expertise." Id. § 312(1). When opposing parties agree on the selection of the IME, the IME's opinion is binding. Id. § 312(7). When the parties cannot agree, the Board may appoint an IME and is then required to adopt the IME's findings in the absence of clear and convincing evidence to the contrary. Id. § 312(3), (7).
A primary purpose of the IME system is to prevent "doctor shopping" and to reduce litigation. As one legislator remarked:
he new law clearly does establish the IME and does establish the criteria for the IME so that it may not be rebutted other than by clear and convincing evidence. That is a higher standard, it does away with doctor shopping, there would be much more doctor shopping under the old law, there would be much more running to different experts and having a contentious type of situation where the insurers hire experts and the employee hires experts. The whole process is attempting to change this method of doing business.
7 Legis. Rec. H-61 (3rd Spec. Sess. 1992) (Statement of Rep. Hastings). We have noted the importance of the integrity of the IMEs in other opinions. "Because of the significance of the IME's role, independence, integrity, and absence of conflict of interest are important." Laskey v. S.D. Warren Co., 2001 ME 103, 18, 774 A.2d 358, 363.
In order to assure the independence of independent medical examiners, the Legislature has restricted those who may serve in that capacity. See 39-A M.R.S.A. § 312(2) (2001). There are three primary restrictions. First, the employee's "treating health care provider" may not act as an IME in that employee's case. Id. Second, the doctor "may not have treated the employee with respect to the injury for which the claim is being made." Id. And third, " physician who has examined an employee . . . in accordance with section 207 during the previous 52 weeks" may not serve as an IME. Id.
The question before us is whether the third restriction applies only to a section 207 examination of the employee whose case is at issue or applies to a section 207 examination of any employee. The analysis centers on the word "an" in the last sentence of section 312(2), specifically: "A physician who has examined an employee at the request of an insurance company, employer or employee in accordance with section 207 during the previous 52 weeks is not eligible to serve as an independent medical examiner." Id. § 312(2) (emphasis added). Lydon argues that "an employee" means "any" employee, but Sprinkler urges us to conclude that the term "an employee," in this context, must be read to refer to the specific employee whose case is at issue. If, as Lydon argues, a physician is ineligible for appointment as an IME if he or she has performed any section 207 examinations within the preceding year, then the physician in the matter before us was not eligible and the hearing officer's reliance on his opinion was in error.
We must begin our analysis by addressing the plain language of the statute. See Jordan v. Sears, Roebuck & Co., 651 A.2d 358, 360 (Me. 1994). Although Sprinkler argues that it has been a common practice for doctors who perform section 20
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