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Lydon v. Sprinkler Services2/12/2004
7 examinations to serve regularly as IMEs, we cannot defer to the practice in the field. In this highly regulated area, the Legislature's language and intent must control. We conclude that the distinct uses of the definite and indefinite articles make the Legislature's intent clear. A review of the three restrictions discloses the explicitly different treatment. The independent medical examiner in a case
(1) "may not be the employee's treating health care provider,"
(2) "may not have treated the employee with respect to the injury" at issue, and
(3) may not be a physician who has examined "an employee . . . in accordance with section 207 during the previous 52 weeks."
39-A M.R.S.A. § 312(2) (emphasis added).
The definite article "the (as opposed to a, an) refers to: . . . a particular person, thing, or group." Webster's New World Compact Desk Dictionary and Style Guide 499 (2d ed. 2002). The word "an," on the other hand, when used as an indefinite article, refers to "each; any one." Id. at 17. In this context, because "the employee" certainly refers to the specific employee whose case is at issue, the evident change from the definite article to the use of the indefinite article "an employee" in the final prohibition must reflect a legislative intent to refer not to the employee at issue, but to "any" employee. In other words, by its plain language, the Legislature has decreed that any physician who has examined any employee pursuant to section 207 within the past year is ineligible to serve as an independent medical examiner.
We reach this conclusion notwithstanding the rule promulgated by the Workers' Compensation Board, in which the Board excludes from consideration as an IME those physicians who have "examined the employee . . . in accordance with 39-A M.R.S.A. § 207" rather than "an employee" as excluded by the statute. Me. W.C.B. Rule, ch. 4 § 2(6)(B) (emphasis added). Through the use of the definite article, the Board rule appears to apply the section 207 exclusion only to those physicians who had examined the employee at issue.
Because the focus is on a single word-"the" rather than "an"-it is possible that the language contained in the Board's rule represents a scrivener's error or typographical error. To the extent that it was intended as a substantive change, however, it contradicts the language of the statute and therefore exceeds the authority of the Board. See Beaulieu v. Me. Med. Ctr., 675 A.2d 110, 111 (Me. 1996) (invalidating Board rule precluding retroactive application of statute governing inclusion of fringe benefits in average weekly wage when rule was inconsistent with the statute).
Finally, because we have concluded that the physician was ineligible to serve as an IME, we need not reach Lydon's argument that the hearing officer erred in relying on the physician's opinion given the physician's substantial failure to provide the hearing officer and the parties with relevant information relating to a potential conflict of interest.
The entry is: The decision of the hearing officer of the Workers' Compensation Board is vacated. Remanded to the Workers' Compensation Board for further proceedings consistent with this opinion.
CLIFFORD, J., with whom LEVY, J., joins concurring in part and dissenting in part.
I concur in the Court's conclusion that the decision of the hearing officer must be vacated, but I disagree that Me. W.C.B. Rule, ch. 4, § 2(6)(B) violates 39-A M.R.S.A. § 312(2) (2001). I would vacate the decision because, in my view, the hearing officer should not have relied on the opinion of the independent medical examiner to deny Jose
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