A § 207 examination is performed by a doctor chosen by the employer and insurer. The key provision is as follows:
An employee being treated by a health care provider of the employee’s own choice shall, after an injury and at all reasonable times during the continuance of disability if so requested by the employer, submit to an examination by a physician, surgeon, or chiropractor authorized to practice as such under the laws of this State, to be selected and paid by the employer. The physician, surgeon, or chiropractor must have an active practice of treating patients. For purposes of this section, “active practice” may be demonstrated by having active clinical privileges at a hospital. A physician or surgeon must be certified in the field of practice that treats the type of injury complained of by the employee. Certification must be by a board recognized by the American Board of Medical Specialties or the American Osteopathic Association or their successor organizations. A chiropractor licensed by the Board of Chiropractic Licensure who has an active practice of treating patients may provide a second opinion when the initial opinion was given by a chiropractor.
Once an employer selects a health care provider to examine an employee, the employer may not request that the employee be examined by more than one other health care provider, other than a § 312 examiner (more on this below), without prior approval from the employee or an administrative law judge (ALJ). However, this does not limit an employer’s right to request that the employee be examined by a specialist upon referral by the health care provider. Once the employee is examined by the specialist, the employer may not request that the employee be examined by a different specialist in the same specialty, other than a § 312 examiner, without prior approval. The employee has the right to have a physician, surgeon, or chiropractor of the employee’s own selection present at the exam, whose costs are paid by the employer. The doctor’s opinion is not entitled to any special weight.
On the other hand, a § 312 examination is an independent medical examination performed by a doctor appointed by the Maine Workers’ Compensation Board.
The Board maintains a list of health care providers in specific fields of expertise to serve as independent medical examiners from each of the specialties the board finds most commonly used by injured employees. An independent medical examiner must be certified in the field of practice that treats the type of injury at issue. One other important characteristic of the § 312 process is that the parties are to have no direct contact with the § 312 examiner. Rather, the parties are to submit any questions to the examiner and materials through the Board’s Office of Medical and Rehab Services.
Ultimately, an independent medical examiner “shall render medical findings on the medical condition of an employee and related issues. . . . ” The independent medical examiner shall issue a written report stating the examiner’s medical findings on the issues raised by that case and providing a description of findings sufficient to explain the basis of those findings. The Board must adopt the medical findings of the independent medical examiner unless there is clear and convincing evidence to the contrary in the record that does not support the medical findings. The Board shall state, in writing, the reasons for not accepting the medical findings of the independent medical examiner. The Maine Supreme Court has interpreted the clear and convincing evidence to the contrary standard to require a showing “that it was highly probable that the record did not support the [independent medical examiner’s] medical findings” (Dubois v. Madison Paper, Co., 2002 ME 1). Further, where the ALJ adopts the § 312 examiner’s findings, the decision may only be reversed on appeal if the findings are not supported by any competent evidence of the records that shows no reasonable basis to support the decision. This is obviously a very high standard.
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