Section 207 vs. Section 312: Understanding the Difference

There are key differences between a § 207 exam and a § 312 exam that must be understood to have a proper grasp on medical evaluations under the Maine Workers’ Compensation Act.

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.

Recent Appellate Division Cases: Benefits Reduction Due to Erroneous Calculations, Improper Communications with § 312 Examiner

Penalties for Reducing Benefits After Years of Improper Calculations

In Puiia v. Rumford Paper Co. (Me. WCB App. Div. No. 17-34), the Maine Workers’ Compensation Board (WCB) Appellate Division will hear oral argument in a case in which the employee sought the imposition of penalties based on the employer/insurer’s reduction of incapacity benefits. The employee had been paid 100% partial benefits pursuant to a March 2008 Decree that stated, “The employee is entitled to 100% partial benefits (limited by the statutory maximum) for the period November 28, 2006, through the present, and continuing.”

Per the above order, the Employee began paying weekly compensation of $574.08. On June 30, 2018, the Employer filed a Modification of Compensation, increasing benefits to $596.42 per week effective July 1, 2008, the date the maximum weekly benefit amount (§ 211) was adjusted. Similar increases were made on July 1 of each year through 2013. However, effective July 1, 2014, the Employer reduced weekly compensation at a rate from $655.78/week to $492.96/week. The reduction was made because the Employer had incorrectly calculated benefits by including fringe benefits (under § 102(4)(H) fringe benefits are not to be included in the benefit calculation if the resulting benefit amount exceeds 2/3 of the State Average Weekly Wage (SAWW) at the time of injury). In this case, the employee’s full compensation rate was an amount in excess of 2/3 of the SAWW. Therefore, by operation of § 102(4)(H), fringe benefits cannot be included in the weekly benefit amount. The administrative law judge (ALJ) found, “[t]he fact that Employer erroneously did so for years does not require it to continue to make the same computational error.”

The WCB found that the Employer/Insurer correctly calculated benefits in accordance with the payment order in the 2008 Decree, resulting in a reduction of her benefits effective July 1, 2014. There was therefore no legal basis for the imposition of penalties under §§ 359 or 360.

Alleged Improper Communication with § 312 Examiner

In Leclair v. Twin Rivers Paper Co., LLC (Me. WCB App. Div. No. 17-19), the issue before the Appellate Division is “[w]hether a violation of Board Rule Chapter 4 regarding communication with a § 312 examiner is sufficient to disqualify that examiner automatically or whether such disqualification is dependent on a finding of actual bias.” 

WCB Rules c. 4 § 3 provide in relevant part:

Contacts with the employee by the Board-appointed independent medical examiner will be limited to the scheduling of examinations and actual examinations. All communication between the examiner and the parties must be in writing and, except for questions which a party requests that the examiner address in the report, may only occur by agreement or with the permission of the hearing officer. Any such communication must be received by the Board and copied to all opposing parties not later than fourteen (14) days prior to any examination and must clearly and conspicuously state that the communication has been agreed to by the parties or approved by a hearing officer. Communications that comply with this subsection will be forwarded to the examiner through the Office of Medical/Rehabilitation Services. Communications received by the Board on or after the date of the examination will only be forwarded to the examiner with prior approval of a hearing officer. 

In this case, involving an alleged gradual injury to the lungs and respiratory system, the employee was evaluated by a § 312 examiner. The § 312 examiner found the upper airway sensitivity to be an occupational injury. The WCB adopted these findings. The employer/insurer objected to the admissibility of the § 312 examiner’s report because, according to the ALJ, “employee brought with him to the examination written materials which were not submitted to the [insurance medical exam] IME consistent with Board rules.” However, the ALJ also noted that at this deposition, the § 312 examiner testified that the written materials the employee brought to the § 312 exam “made no difference to his diagnosis and causation opinion.”

The decision is expected to shed light on whether the WCB Rule at issue is a zero-tolerance provision or whether actual bias must be demonstrated to disqualify a § 312 examiner. 

Remaining Issues

The Appellate Division will also take up other issues during the February session, including sufficiency of findings to support ongoing causation, refusal of suitable work, and a change in circumstances in the context of work capacity, among others. The Appellate Division is set to hold additional sessions this year in April, June, September, and December.

Maine Workers’ Compensation Board Approves New § 312 Candidates

In a unanimous vote, the Maine Workers’ Compensation Board recently approved Dr. Benjamin Branch, a physiatrist, and Dr. Howard Glass, a cardiologist, as independent medical examiners (IMEs) pursuant to 39-A M.R.S.A. §312 of the Maine Workers’ Compensation Act. 

Section 312 IMEs render medical findings on the medical condition of an employee and related issues. The IME in a case may not be the employee’s treating healthcare provider and may not have treated the employee with respect to the injury for which the claim is being made or for which the benefits are being paid. Unless agreed upon by the parties, or no other physician is reasonably available, a physician is not eligible to be assigned as an IME if the physician has examined the employee at the request of an insurance company, employer, or employee in accordance with section 207 (an employer/insurer-requested medical examination) or has been closely affiliated with the insurance company at any time during the previous 52 weeks. 

The opinions of IMEs are afforded great weight. Under the Maine Workers Compensation Act, “[t]he board shall adopt the medical findings of the [IME] unless there is clear and convincing evidence to the contrary in the record that does not support the medical findings.” The Maine Supreme Court has interpreted the “clear and convincing evidence to the contrary” standard to require a showing “that it is highly probable that the record did not support the [IME’s] findings.” Dubois v. Madison Paper, Co., 2002 ME 1. The Court in Dubois described the standard as follows:

The party with the burden of persuasion may prevail only if he can place in the ultimate factfinder an abiding conviction that the truth of his factual contentions are highly probable.

Id. at ¶ 10 (citations and internal quotations omitted).

The Board maintains a list of approved examiners, which, at the present time, includes the following specialties: chiropractic, internal medicine, family medicine, orthopedics, osteopathy, physiatry, podiatry, psychology, psychiatry, neurology, and pulmonology.