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Lydon v. Sprinkler Services2/12/2004
ial 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.
Me. W.C.B. Rule, ch. 4, § 2(6)(C).
We have previously upheld a hearing officer's disqualification of an IME for excessive ties to industry. In Laskey v. S.D. Warren Co., 2001 ME 103, 12-14, 774 A.2d 358, 361-62, the hearing officer disqualified an IME on the basis of evidence of bias that came out during the hearing. The record in Laskey suggested that the IME had conducted numerous non-IME examinations.
[The IME] at his deposition indicated that: (i) in the fifty-two weeks prior to the examination of Laskey, [the IME] performed, on average, between ten and twelve medical examinations per week; (ii) between 90% and 95% were section 207 examinations; and (iii) 95% of those examinations were for "insurance companies, employers or defense counsel." [The IME] testified that he charges $850 per examination, on average, and earns roughly $240,000 per year from medical exams. In addition, [the IME] testified that he earns roughly $90,000 per year treating employees and patients as medical director of the occupational health clinic at Goodall Hospital in Sanford. [The IME] also testified that he has acted as a consultant to five significant southern Maine employers.
Id. 13, 774 A.2d at 361-62 (footnotes omitted). We noted: "Taking [the IME's] testimony, estimating an average of ten to twelve medical exams a week, at his stated average fee of $850 per examination, would calculate to in excess of $400,000 per year from medical examinations." Id. 13 n.5, 774 A.2d at 361.
In order to determine an IME's potential bias, the hearing officer should, at a minimum, have information concerning (1) how many section 207 examinations were performed by the IME in the preceding fifty-two weeks and on whose behalf; (2) how much money was received in the performance of those examinations; (3) how much of the doctor's total income is related to these examinations; and (4) whether and how often the doctor has performed IMEs for the particular employer or employee or insurer or law firms involved in the present case. Other areas of inquiry could include (1) whether a member of the IME's immediate family has substantial ties to industry that may reflect bias; (2) the number of examinations an IME may have performed outside the workers' compensation context and for whom; (3) whether the IME has received "something of value" from "industry, insurance companies, and labor groups" "in the form of an equity position, royalties, consultantship, funding by a research grant, or payment for some other service;" or (4) whether the IME "performs equivalent examinations as an employee of another organization," and the extent of "that organization's contracts with industry, insurance companies, and labor groups." Me. W.C.B. Rule, ch. 4, § 2(6)(C).
It is apparent from the record that the IME in this case made a deliberate choice not to answer specific questions concerning his ties to industry. A hearing officer cannot perform the essential function of determining IME bias if the IME refuses to cooperate with a reasonable inquiry into his or her ties
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