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Serda v. State ex rel Wyoming Workers' Safety and Compensation Div.3/14/2002
a medical hearing panel acting as hearing examiner pursuant to W.S. 27-14-616.
In Pohl's case, the Division disputed the percentage of physical impairment and arranged for an IME. After the IME was completed, the Division employed a case review physician, Dr. MacGuire, to assist in "determin the physical impairment award upon consideration of the initial and second opinion." Clearly, the Division was within its authority in engaging a medical professional, Dr. MacGuire, to assist in evaluating the case before it. See Wyo. Stat. Ann. § 27-14-801(d) (Michie Rpl. June 1991). Moreover, when Pohl's Oregon physician indicated in a report that "Oregon physicians don't do ratings," closer consideration of the ratings from both Oregon physicians was warranted. After reviewing the impairment ratings, Dr. MacGuire concluded that both ratings were invalid due to inaccurate applications of the AMA Guide.
In her brief, Pohl concedes that it is appropriate for the Division to reject evidence which is invalid or erroneous. Nevertheless, she maintains that the Division erred by disregarding the ratings from the Oregon physicians. We disagree. With the accuracy of the impairment ratings challenged, the Division properly denied Pohl's claim and left its resolution to the expertise of the Medical Commission. We conclude that the Division's acted in accordance with Wyo. Stat. Ann. § 27-14-405(m) when it employed Dr. MacGuire to evaluate Pohl's impairment ratings.
[ ] The Pohl case tends to suggest that the Division may obtain an IME at its expense when it deems it necessary; whereas, the worker may not have any right to counter such an IME except at the worker's own expense. The case of Sweets v. State of Wyoming, ex rel. Wyoming Workers' Safety and Compensation Division, 2002 WY 37, ___ P.3d ____, (Wyo. 2002) (No. 01-29, published March 12, 2002) contains another similar example where the Division obtained two IME's prior to a hearing.
CONCLUSION
[ ] We agree with the Division's contention that Wyo. Stat. Ann. § 27-14-405(m) authorizes two impairment ratings. We find it unnecessary under the circumstances of this case to definitively answer the Division's contention that that same statute, ergo, prohibits a third (or subsequent) evaluation.
[ ] Although Serda sought approval from the Commission to obtain an IME, that request was not approved prior to Serda having incurred the expense of the IME. Approval of that expenditure either before the hearing or after the hearing was within the authority of the Commission. However, we are unable to conclude that denying Serda reimbursement for that expense was arbitrary, capricious, an abuse of discretion, or contrary to applicable law, and the Commission's order is affirmed.
Golden, J., concurring, in which Voigt, J. joins.
[ ] While I concur in the result, I write separately because I differ with the majority opinion regarding the statutes at issue and their application. I also disagree with the factual context applied by the majority opinion. An independent medical examination as contemplated under § 27-14-604 never occurred in this case, thus making § 604 inapplicable to these facts.
[ ] The Division argues that § 27-14-405 limits the responsibility of the Division under these circumstances to two physical examinations, leading the majority opinion to discuss several sections of Article 4 of the Wyoming Worker's Compensation Act. The Division is confusing the applicable statutes. Section 405 only applies to the initial determination of an impairment rating. The circumstances at issue in this case arise within the context of a contested case hearing. Section 405 simply ha
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