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Lydon v. Sprinkler Services2/12/2004
ph Lydon's petition for award.
I. CONSTRUING THE STATUTE
Disqualification of an independent medical examiner is covered by Me. W.C.B. Rule, ch. 4, § 2(6), which provides in pertinent part:
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.
The Court concludes that section 2(6)(B) of chapter 4 violates 39-A M.R.S.A. § 312(2). The Court reads section 312(2) as unambiguously precluding for eligibility to serve as an IME a physician who, during the previous year, has examined any employee in accordance with section 207 of title 39-A. I disagree.
In my view, the language of section 312(2) is not free of ambiguity and is susceptible of more than one interpretation. See Competitive Energy Servs., LLC v. Pub. Utils. Comm'n, 2003 ME 12, 15, 818 A.2d 1039, 1046 (statute ambiguous if language is reasonably susceptible of different interpretations). The "an employee" language in section 312 can be construed as referring to the specific employee whose case is before the Board, or to any employee. I would agree with the Court that the rule would violate section 312 if, in section 312(2), the Legislature had chosen to use the language "any employee," as opposed to "an employee."
In promulgating chapter 4, section 2(6) of its rules, the Workers' Compensation Board construed section 312(2) as disqualifying a physician from eligibility as an independent medical examiner only if the physician treated or examined the employee whose case was before the Board. We defer to the Board's construction of the Workers' Compensation Act "unless the statute plainly compels a different result." Jordan v. Sears, Roebuck & Co., 651 A.2d 358, 360 (Me. 1994) (internal quotations omitted). This rule is in keeping with the general rule that the construction of a statute by the administrative agency over which it has jurisdiction is entitled to great deference and will be upheld "unless the statute plainly compels a contrary result." Competitive Energy Servs., 2003 ME 12, 15, 818 A.2d at 1046 (internal quotations omitted); Wood v. Superintendent of Ins., 638 A.2d 67, 70 (Me. 1994) (internal quotations omitted).
Moreover, assuming arguendo, that the statute had to be interpreted contrary to the interpretation given to it by the Board, the result would limit the number of physicians who possess the qualifications to testify about workplace injuries, who would be eligible to qualify as IMEs. Maine is not a large state, and does not have an unlimited number of available physicians. The Board's construction, in promulgating the rule, avoids such a limiting result.
II. DISQUALIFYING THE IME PHYSICIAN
Although I would defer to the Board's rulemaking authority, I would conclude that, in the present case, the hearing officer acted beyond his discretion in accepting and relying on the testimony of the physician who was designated as the IME, given the doctor's steadfast refusal to answer reasonable and pertinent questions concerning his ties to industry.
The Board rules provide guidance as to what factors may be relevant to the disqualification issue:
The independent medical examiner must disclose potent
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