In a far-reaching decision, the Law Court has redefined the 39-A
M.R.S.A. §312(2) designation of a §312 independent medical examiner.
In the hearing giving rise to the appeal, the employee asserted that
the §312 examiner should be dismissed because he had provided §207
examinations within the preceding fifty-two weeks. At deposition the
§312 examiner admitted to performing numerous §207 examinations within
the past year, yet the Hearing Officer relied upon the §312 examiner’s
opinion and denied the employee’s petitions.
The Law Court focused their analysis of the appeal on a strict reading
of 39-A M.R.S.A. §312(2). Specifically, whether or not the legislature
intended to disqualify §312 examiners who have treated the specific
employee who is the subject of the litigation or whether or not a §312
examiner should be disqualified for examining any employee within the
fifty-two weeks prior to the examination date. Section 312 provides
three provisions for disqualification of an examiner for §312 purposes.
Specifically, the examiner may not be the employee’s treating health
care provider, the examiner may not have treated the employee for the
specific injury alleged and the physician “cannot be a physician who
has examined AN employee (emphasis added)….in accordance with §207
during the previous fifty-two weeks.” See 39-A M.R.S.A. §312.
The Law Court found that the use of “an” shows legislative intent not
to refer solely to the employee at issue but to any employee. The Court
then looked at the Board rule regarding §312 examiners. The Board rule
uses the term “the” instead of “an” used in the statute. Relying upon
that distinction, the Law Court found that the Board rule contradicted
the statute and therefore exceeded Board authority.
The Law Court decision effectively disqualified any §312 examiner who
has performed a §207 evaluation on any employee within the fifty-two
weeks prior to the date of examination. There was a strong dissent
presented by Justice Clifford and joined by Justice Levy. These
dissenters disagreed with the majority’s reading of §312(2),
specifically that the legislature intended to cover “any” employee. The
dissent indicated that §312(2) is not free of ambiguity and is
susceptible of more than one interpretation. Therefore, the dissenters
deferred to the Board’s construction of the Workers’ Compensation Act.
The dissenters would essentially leave it up to the Hearing Officer to
determine whether or not, on a case by case basis, a specific §312
examiner was biased.