Independent Medical Examinations

The Law

LHWCA  907

(e) Physical examination; medical questions; report of physical impairment; review or reexamination; costs.

In the event that medical questions are raised in any case, the Secretary shall have the power to cause the employee to be examined by a physician employed or selected by the Secretary and to obtain from such physician a report containing his estimate of the employee’s physical impairment and such other information as may be appropriate.

Any party who is dissatisfied with such report may request a review or reexamination of the employee by one or more different physicians employed or selected by the Secretary.

The Secretary shall order such review or reexamination unless he finds that it is clearly unwarranted.

Such review or reexamination shall be completed within two weeks from the date ordered unless the Secretary finds that because of extraordinary circumstances a longer period is required.

The Secretary shall have the power in his discretion to charge the cost of examination or review under this subsection to the employer, if he is a self-insurer, or to the insurance company which is carrying the risk, in appropriate cases, or to the special fund in section 44 [33 USC § 944].

(f) Place of examination; exclusion of physicians other than examining physician of Secretary; good cause for conclusions of other physicians respecting impairment; examination by employer’s physician; suspension of proceedings and compensation for refusal of examination.

An employee shall submit to a physical examination under subsection (e) at such place as the Secretary may require.

The place, or places, shall be designated by the Secretary and shall be reasonably convenient for the employee.

No physician selected by the employer, carrier, or employee shall be present at or participate in any manner in such examination, nor shall conclusions of such physicians as to the nature or extent of impairment or the cause of impairment be available to the examining physician unless otherwise ordered, for good cause, by the Secretary.

Such employer or carrier shall, upon request, be entitled to have the employee examined immediately thereafter and upon the same premises by a qualified physician or physicians in the presence of such physician as the employee may select, if any.

Proceedings shall be suspended and no compensation shall be payable for any period during which the employee may refuse to submit to examination.

i) Physicians’ ineligibility for subsection (e) physical examinations and reviews because of workmen’s compensation claim employment or fee acceptance or participation. Unless the parties to the claim agree, the Secretary shall not employ or select any physician for the purpose of making examinations or reviews under subsection (e) of this section who, during such employment, or during the period of two years prior to such employment, has been employed by, or accepted or participated in any fee relating to a workmen’s compensation claim from any insurance carrier or any self-insurer.

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20 CFR 702 Subpart D

The Regulations

20 CFR 702.408 – Evaluation of medical questions; impartial specialists.

• Section Number: 702.408
• Section Name: Evaluation of medical questions; impartial specialists.

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In any case in which medical questions arise with respect to the appropriate diagnosis, extent, effect of, appropriate treatment, and the duration of any such care or treatment, for an injury covered by the Act, the Director, OWCP, through the district directors having jurisdiction, shall have the power to evaluate such questions by appointing one or more especially qualified physicians to examine the employee, or in the case of death to make such inquiry as may be appropriate to the facts and circumstances of the case. The physician or physicians, including appropriate consultants, should report their findings with respect to the questions raised as expeditiously as possible. Upon receipt of such report, action appropriate therewith

20 CFR 702.409 – Evaluation of medical questions; results disputed.

• Section Number: 702.409
• Section Name: Evaluation of medical questions; results disputed.

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Any party who is dissatisfied with such report may request a review or reexamination of the employee by one or more different physicians employed by or selected by the Director, and such review or reexamination shall be granted unless it is found that it is clearly unwarranted. Such review shall be completed within 2 weeks from the date ordered unless it is impossible to complete the review and render a report thereon within such time period. Upon receipt of the report of this additional review and reexamination, such action as may be appropriate shall forthwith be taken.

20 CFR 702.410 – Duties of employees with respect to special examinations.

(a) For any special examination required of an employee by Secs. 702.408 and 702.409, the employee shall submit to such examination at such place as is designated in the order to report, but the place so selected shall be reasonably convenient for the employee. (b) Where an employee fails to submit to an examination required by Sec. Sec. 702.408 and 702.409, the district director or administrative law judge may order that no compensation otherwise payable shall be paid for any period during which the employee refuses to submit to such examination unless circumstances justified the refusal. (c) Where an employee unreasonably refuses to submit to medical or surgical treatment, or to an examination by a physician selected by the employer, the district director or administrative law judge may by order suspend the payment of further compensation during such time as the refusal continues. Except that refusal to submit to medical treatment because of adherence to the tenets of a recognized church or religious denomination as described in Sec. 702.401(b) shall not cause the suspension of compensation. [42 FR 45303, Sept. 9, 1977, as amended at 50 FR 402, Jan. 3, 1985; 51 FR 4286, Feb. 3, 1986]

20 CFR 702.411 – Special examinations; nature of impartiality of specialists.

• Section Number: 702.411
• Section Name: Special examinations; nature of impartiality of specialists.

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(a) The special examinations required by Sec. 702.408 shall be accomplished in a manner designed to preclude prejudgment by the impartial examiner. No physician previously connected with the case shall be present, nor may any other physician selected by the employer, carrier, or employee be present. The impartial examiner may be made aware, by any party or by the OWCP, of the opinions, reports, or conclusions of any prior examining physician with respect to the nature and extent of the impairment, its cause, or its effect upon the wage- earning capacity of the injured employee, if the district director determines that, for good cause, such opinions, reports, or conclusions shall be made available. Upon request, any party shall be given a copy of all materials made available to the impartial examiner. (b) The impartiality of the specialists shall not be considered to have been compromised if the district director deems it advisable to, and does, apprise the specialist by memorandum of those undisputed facts pertaining to the nature of the employee’s employment, of the nature of the injury, of the post-injury employment activity, if any, and of any other facts which are not disputed and are deemed pertinent to the type of injury and/or the type of examination being conducted. (c) No physician selected to perform impartial examinations shall be, or shall have been for a period of 2 years prior to the examination, an employee of an insurance carrier or self-insured employer, or who has accepted or participated in any fee from an insurance carrier or self- insured employer, unless the parties in interest agree thereto. [38 FR 26861, Sept. 26, 1973, as amended at 42 FR 45303, Sept. 9, 1977]

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Federal Rules of Civil Procedure 35 (b

You won’t be told about these but they are used to make your DME Demands

These are also YOUR Rights

(a) Order for an Examination.

(1) In General.

The court where the action is pending may order a party whose mental or physical condition — including blood group — is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner. The court has the same authority to order a party to produce for examination a person who is in its custody or under its legal control.

(2) Motion and Notice; Contents of the Order.

The order:

(A) may be made only on motion for good cause and on notice to all parties and the person to be examined; and

(B) must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.

(b) Examiner’s Report.

(1) Request by the Party or Person Examined.

The party who moved for the examination must, on request, deliver to the requester a copy of the examiner’s report, together with like reports of all earlier examinations of the same condition. The request may be made by the party against whom the examination order was issued or by the person examined.

(2) Contents.

The examiner’s report must be in writing and must set out in detail the examiner’s findings, including diagnoses, conclusions, and the results of any tests.

(3) Request by the Moving Party.

After delivering the reports, the party who moved for the examination may request — and is entitled to receive — from the party against whom the examination order was issued like reports of all earlier or later examinations of the same condition. But those reports need not be delivered by the party with custody or control of the person examined if the party shows that it could not obtain them.

(4) Waiver of Privilege.

By requesting and obtaining the examiner’s report, or by deposing the examiner, the party examined waives any privilege it may have — in that action or any other action involving the same controversy — concerning testimony about all examinations of the same condition.

(5) Failure to Deliver a Report.

The court on motion may order — on just terms — that a party deliver the report of an examination. If the report is not provided, the court may exclude the examiner’s testimony at trial.

(6) Scope.

This subdivision (b) applies also to an examination made by the parties’ agreement, unless the agreement states otherwise. This subdivision does not preclude obtaining an examiner’s report or deposing an examiner under other rules.

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From the Longshore Manual

. Evaluation When There is Conflicting Medical Evidence and/or Disagreement. Whenever the CE determines that a medical evaluation is needed to resolve disputes as to the degree of permanent impairment, the CE should immediately arrange for an evaluation. Selection of a physician and scheduling of the evaluation can be handled by phone, letter, or at a conference by any of the parties in interest. Where section 8(f) relief is an issue, all arrangements must be made by the DO.

8. Selection of Physician to Conduct Evaluation. The selection of a physician to conduct the evaluation of impairment can be made in several ways. While any of these methods may be used, it is generally preferable to have the parties participate in the selection of the physician. Please refer to PM 5-200.10 for further guidance on the selection of impartial specialist.

a. Selection by CE. The CE can select a physician for an impartial evaluation pursuant to section 7(e) or section 14(h) of the Act.

b. Selection by Parties. The CE can provide the names of three or more Board-certified specialists in the needed specialty and have the parties select a physician from those named.

c. Mutual Agreement of Parties. The parties can mutually agree on a physician of the appropriate specialty. This method for choosing a physician should not be used in cases where section 8(f) relief is an issue.

9. Selection of Physician by Claims Examiner.

a. Rotation System. Whenever the CE presents names of physicians for selection by the parties, or selects a physician without the participation of the parties, a rotation system of selection will be followed.

b. Suitability of Physician. There will be physicians who are unable or unwilling to conduct evaluations. Other physicians may have become known as being unduly biased in favor of either claimants or employers. Such physicians should be omitted from the rotation system.

c. Section 7(i) Restriction. If the restrictions of section 7(i) and a party’s unwillingness to waive them make the use of that provision impractical, the CE then proceeds with the evaluation under the authority of section 14(h), which is an alternative to section 7(e) for evaluating permanent impairment.

d. Examination Under Section 14(h). Examinations under section 14(h) shall generally be arranged to preclude pre-judgment by the impartial specialist. No physician previously connected with the case should be present, nor may any other physician selected by either party be present.

e. Impartiality of Examinations. The examining physician should not routinely be apprised of the opinions, reports, or conclusions of any prior examining physician with regard to the nature and extent of the employee’s impairment and its cause or effect on the employee’s wage-earning capacity. (See 20 C.F.R. section 702.411(a) and (b) and PM 5-200.10.)

10. Referral Arrangements.

a. Requirements for Physician’s Report. Once the impartial specialist has been selected, either under section 7(e) or section 14(h), the CE will contact the physician’s office, preferably by telephone, to determine if the physician is willing to conduct such an evaluation. If so, the arrangements will be formalized by use of a narrative letter which sets forth the essential background data and requests that the report include all or as much of the following information as may be appropriate:

(1) Date of examination.

(2) History given by employee.

(3) Detailed description of findings.

(4) Results of any x-ray or laboratory tests.

(5) Diagnosis.

(6) An estimate of the percentage of impairment remaining due to the injury in accordance with the AMA Guides, where applicable.

(7) Date of maximum improvement, if reached.

(8) Prognosis.

(9) Advice as to the work limitations imposed by reason of injury-related impairment with respect to lifting, bending, stooping, walking, reaching, standing, etc.

(10) Recommendations for further medical treatment, if indicated.

(11) An indication whether the physician would be available to testify at a formal hearing, either in person or by deposition.

b. Arrangements by Party in Interest. If there is mutual agreement by the parties as to the examining physician, one of the parties may arrange the examination, contact the physician’s office, make the referral, and request that the medical report contain information which is outlined in subparagraph 10a. As previously noted, this method should not be utilized in cases where section 8(f) relief is an issue.

c. Referrals in Section 8(f) Cases. Where an impartial evaluation is to be used to clarify medical issues in a case where section 8(f) is an issue, the examination should be arranged by the DD. This is not to be done by the private parties. The claimant should be examined by the impartial medical specialist. The DD should frame the questions to be answered by the specialist and the report of the specialist should be sent first to the DD. This procedure should be followed so that the specialist’s evaluation will be impartial and not simply reflect the views of the private parties.

11. Receipt of Medical Report of Evaluation. On receipt of the medical report, the CE should make a copy of the report available to the parties, if they have not already been furnished one. The CE will then review the report carefully and, along with other factors necessary in evaluating disability, determine the extent of disability, and make a recommendation for the consideration of the parties.

12. Evaluation Disputed.

a. Request for Reexamination. A party who is dissatisfied with the findings of the evaluating physician may request a review or reexamination of the claimant. The CE should grant the request unless considered unwarranted. When the request is granted, the physician should be chosen using the same procedure as when the initial selection was made.

b. Conduct of Reexamination. The reexamination shall be completed within two weeks from the date ordered, unless it is impossible to complete the reexamination and render a report within such time period.

13. Determination of Disability. Following receipt of medical reports of reexaminations or reviews, the CE should not usually authorize any further evaluations, reexaminations, or reviews, but will carefully evaluate all the medical evidence and non-medical factors necessary in evaluating disability, determine the extent of disability, and make a recommendation for the consideration of the parties.

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