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Laskey v. S.D. Warren, attorneys and footnotes


Attorney for employee:

James J. MacAdam, Esq., (orally)
MacAdam McCann
236 Gannett Drive
South Portland, ME 04106

Attorney for employer:

Kevin M. Gillis, Esq., (orally)
Troubh, Heisler & Piampiano, P.A.
P O Box 9711
Portland, ME 04104-5011
FOOTNOTES******************************** {1} . 39-A M.R.S.A. § 207 (2001). {2} . Section 312(2), in its entirety, reads as follows: 2. Duties. An independent medical examiner shall render medical findings on the medical condition of an employee and related issues as specified under this section. The independent medical examiner in a case may not be the employee's treating health care provider and may not have treated the employee with respect to the injury for which the claim is being made or the benefits are being paid. Nothing in this subsection precludes the selection of a provider authorized to receive reimbursement under section 206 to serve in the capacity of an independent medical examiner. A physician who has examined an employee at the request of an insurance company, employer or employee in accordance with section 207 during the previous 52 weeks is not eligible to serve as an independent medical examiner. 39-A M.R.S.A. § 312(2) (2001). {3} . Subparagraph B of section 2(6) is virtually identical to the last sentence in 39-A M.R.S.A. § 312(2) except that in subparagraph B of the Board Rule, the phrase "the employee" is substituted for the phrase "an employee" which appears in the statute, and the phrase "the independent medical examiner" is substituted for the phrase "an independent medical examiner" which appears in the statute. Because the Hearing Officer found specific conflicts of interest in the IME's consulting and employment, under subparagraph (C) of the rule, we need not address this difference between the language of subparagraph B of the rule and the language of the authorizing statute. Thus, we not address the issue of whether section 312(2) creates another basis for disqualification in this case. {4} . 39-A M.R.S.A. § 207 (2001). {5} . Taking Dr. Russell's testimony, estimating an average of ten to twelve medical exams a week, at his stated average fee of $850 per examination, would calculate to in excess of $400,000 per year from medical examinations. {6} . This may be a reference to Hussey Seating. {7} . Section 207 provides, in pertinent part: 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. . . . 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 an independent medical examiner appointed pursuant to section 312, without prior approval from the employee or a hearing officer. This provision 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 a specialist, the employer may not request that the employee be examined by a different specialist in the same specialty, other than an independent medical examiner appointed pursuant to section 312, without prior approval from the employee or the board. . . . . . . . If any employee refuses or neglects to submit to any reasonable examination provided for in this Act, or in any way obstructs any such examination, or if the employee declines a service that the employer is required to provide under this Act, then such employee's rights to compensation are forfeited during the period of the infractions if the board finds that there is adequate cause to do so. 39-A M.R.S.A. § 207. {8} . In addition to examinations for purposes of litigation, 39-A M.R.S.A. § 206 (2001), provides for treatment of employees for their work-related injuries. {9} . See P.L. 2001, ch. 390 (enacting 39-A M.R.S.A. § 224 to clarify the benefit calculation issues addressed in Bernard).

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