8 AAC 45.092 - Second independent medical evaluation
(a) The board will
maintain a list of physicians' names for second independent medical
evaluations. The names will be listed in categories based on the physician's
designation of specialty or particular type of practice and the geographic
location of the physician's practice.
(b) The list of physicians will be created as
follows:
(1) The board or its designee will
ask the Alaska Chiropractic Society, Alaska Dental Society, Alaska Optometric
Association, and Alaska State Medical Association to make recommendations from
within their respective specialty. The recommendations must be received by the
board on or before November 1, 1989 and on or before November 1 of each year
after that.
(2) Not later than
December 15 of each year, the board will publish a bulletin listing the names
of the physicians recommended by the Alaska Chiropractic Society, the Alaska
Dental Society, the Alaska Optometric Association, and the Alaska State Medical
Association as well as the names of second independent medical
examiners.
(3) An attorney who
meets the following criteria may, not later than March 1 of each year, submit a
letter to the commissioner volunteering to serve on a panel to select
physicians for inclusion on the board's list as described in (5) of this
subsection. The attorney must
(A) be admitted
to the practice of law in this or another state;
(B) have personally presented a total of
three cases, no more than one of which was resolved by agreed settlements, for
board decision during the calendar year preceding volunteering to serve on a
panel; and
(C) in the calendar year
preceding volunteering, have represented one class of litigants, either
employee or employer, 90 percent of the time; based on the class of litigant
that was represented 90 percent of the time, the commissioner will classify the
attorney as either an employee or employer attorney.
(4) By May 1 of each year, the commissioner
shall choose, from the attorneys who volunteered in accordance with (3) of this
subsection, two employee attorneys and two employer attorneys to serve on a
panel to select physicians for inclusion on the board's list of physicians. The
panel shall meet and select physicians by August 1 of each year. The
commissioner shall provide staff to schedule the panel's meetings, publish
notice of the meetings, and arrange facilities or other support for the meeting
to assist the panel, but the panel members may not be paid for their work or
expenses for participating on the panel.
(5) The panel members shall vote, or abstain
from voting, upon the physicians whose names were listed in the bulletin
published under (2) of this subsection or are suggested by a panel member, even
if the physician's name did not appear in the bulletin. A physician who
receives three affirmative votes will be sent by the board or its designee an
application and a letter asking if the physician is interested in performing
second independent medical examinations. Unless the board determines that good
cause exists to extend the time, not later than 60 days after the date of the
board's letter the physician must submit
(A)
a completed application listing the physician's education, training, work
experience, specialty, and the particular discipline in which the physician is
licensed, as well as the names and addresses of professional organizations that
have certified the physician or in which the physician is an active
member;
(B) a copy or proof of the
physician's current license from the appropriate licensing agency in the state
in which the physician practices;
(C) a certificate of insurance for the
physician's current and enforceable professional liability insurance for the
services performed; and
(D) a
certificate of insurance for the physician's workers' compensation insurance if
the physician has employees.
(6) If the physician complies with (5) of
this subsection, the physician's name will be added to the board's list of
second independent medical examiners, effective November 1 of that year. Except
as provided in (7) of this subsection and (c) of this section, the physician's
name will remain on the list for three years. After three years, the physician
must be reselected in accordance with (5) of this subsection. If reselected,
the physician will remain on the list unless
(A) three members of the panel described in
(4) of this subsection recommend that the physician be removed from the list
and the department determines that the removal of the physician is not
inconsistent with this chapter; or
(B) the physician is removed from the list
under (7) of this subsection or (c) of this section.
(7) Notwithstanding (d) of this section, the
board may remove a physician's name from the list compiled in accordance with
(6) of this subsection
(A) upon receipt of the
physician's written notification that the physician no longer wants to perform
second independent medical evaluations; or
(B) if, within 30 days after receipt of a
written request, the physician does not annually submit a copy of or proof of
licensing by the appropriate state agency, a certificate of insurance for
professional liability insurance and, if required under AS 23.30, workers'
compensation insurance.
(c) The board will, in its discretion, remove
a physician's name from the list for
(1) the
physician's repeated failure to
(A) timely
file medical reports for treatment of injured workers;
(B) timely file written treatment plans when
required by
AS
23.30.095(c); or
(C) provide medical services and examinations
to injured workers;
(2)
the physician's failure to comply with an order of the board;
(3) revocation by the appropriate licensing
agency of the physician's license to provide services;
(4) decertification of or disciplinary action
against the physician by an applicable certifying agency or professional
organization;
(5) disciplinary
action taken against the physician by the State Medical Board, a representative
of Medicare or Medicaid, or a hospital, for fraud, abuse, or the quality of
care provided;
(6) fraudulent
billing or reporting by the physician;
(7) knowingly falsifying information on the
physician's application;
(8)
conviction of the physician in a state or federal court of any offense
involving moral turpitude or drug abuse, including excessive prescription of
drugs;
(9) unprofessional conduct
or discriminatory treatment by the physician in the care and examination of
patients;
(10) use of treatment by
the physician which is not sanctioned by the physician's peers or national
provider associations as beneficial for the injury or disease under
treatment;
(11) declaration of the
physician's mental incompetency by a court of competent jurisdiction;
(12) failure by the physician to maintain
professional liability insurance or, if required, workers' compensation
insurance; or
(13) failure by the
physician to annually submit a certificate of insurance for professional
liability insurance and, if required, workers' compensation
insurance.
(d) Before
removing a physician's name from the list,
(1) the board will notify the physician, in
writing, either by personal service or by certified mail of the proposed
removal and the reason for it;
(2)
a physician who receives a notification under (1) of this subsection may,
within 30 days after the receipt of the notice, file a written request with the
board for a hearing in accordance with
AS
23.30.110;
(3) the board will issue a written decision
within 30 days after the hearing, or, if no hearing is requested, the board
will issue a written decision within 45 days after the written notice of
proposed removal; the board's decision will be served on the physician
personally or by certified mail, and will state whether the physician's name
was removed from the list and the reason for the removal.
(e) If the parties stipulate that a physician
not on the board's list may perform an evaluation under
AS
23.30.095(k), the board or
its designee may select a physician in accordance with the parties' agreement.
If the parties do not stipulate to a physician not on the board's list to
perform the evaluation, the board or its designee will select a physician to
serve as a second independent medical examiner to perform the evaluation. The
board or its designee will consider these factors in the following order in
selecting the physician:
(1) the nature and
extent of the employee's injuries;
(2) the physician's specialty and
qualifications;
(3) whether the
physician or an associate has previously examined or treated the
employee;
(4) the physician's
experience in treating injured workers in this state or another
state;
(5) the physician's
impartiality; and
(6) the proximity
of the physician to the employee's geographic location.
(f) If the board or its designee determines
that the list of second independent medical examiners does not include an
impartial physician with the specialty, qualifications, and experience to
examine the employee, the board or its designee will notify the employee and
employer that a physician not named on the list will be selected to perform the
examination. The notice will state the board's preferred physician's specialty
to examine the employee. Not later than 10 days after notice by the board or
its designee, the employer and employee may each submit the names, addresses,
and curriculum vitae of no more than three physicians. If both the employee and
the employer recommend the same physician, that physician will be selected to
perform the examination. If no names are recommended by the employer or
employee or if the employee and employer do not recommend the same physician,
the board or its designee will select a physician, but the selection need not
be from the recommendations by the employee or employer.
(g) If there exists a medical dispute under
AS
23.30.095(k),
(1) the parties may file a
(A) completed second independent medical
form, available from the division, listing the dispute together with copies of
the medical records reflecting the dispute, and
(B) stipulation signed by all parties
agreeing
(i) upon the type of specialty to
perform the evaluation or the physician to perform the evaluation;
and
(ii) that either the board or
the board's designee determine whether a dispute under
AS
23.30.095(k) exists, and
requesting the board or the board's designee to exercise discretion under
AS
23.30.095(k) and require an
evaluation;
(2) a party may petition the board to order
an evaluation; the petition must be filed within 60 days after the party
received the medical reports reflecting a dispute, or the party's right to
request an evaluation under
AS
23.30.095(k) is waived;
(A) the completed petition must be filed
timely together with a completed second independent medical form, available
from the division, listing the dispute; and
(B) copies of the medical records reflecting
the dispute; or
(3) the
board will, in its discretion, order an evaluation under
AS
23.30.095(k) even if no
party timely requested an evaluation under (2) of this subsection if
(A) the parties stipulate, in accordance with
(1) of this subsection, to the contrary and the board determines the evaluation
is necessary; or
(B) the board on
its own motion determines an evaluation is necessary.
(h) In an evaluation under
AS
23.30.095(k), the board or
the board's designee will identify the medical disputes at issue and prepare
and submit questions addressing the medical disputes to the medical examiners
selected under this section. The board may direct
(1) a party to make a copy of all medical
records, including medical providers' depositions, regarding the employee in
the party's possession, put the copy in chronological order by date of
treatment with the initial report on top number the records consecutively, and
put the records in a binder;
(2)
the party making the copy to serve the binder of medical records upon the
opposing party together with an affidavit verifying that the binder contain
copies of all the medical reports relating to the employee in the party's
possession;
(3) the party served
with the binder to review the copies of the medical records to determine if the
binder contain copies of all the employee's medical records in that party's
possession; the party served with the binder must file the binder with the
board not later than 10 days after receipt and, if the binder is
(A) complete, the party served with the
binder must file the binder upon the board together with an affidavit verifying
that the binder contain copies of all the employee's medical records in the
party's possession; or
(B)
incomplete, the party served with the binder must file the binder upon the
board together with a supplemental binder with copies of the medical records in
that party's possession that were missing from the binder and an affidavit
verifying that the binder contain copies of all medical records in the party's
possession; the copies of the medical records in the supplemental binder must
be placed in chronological order by date of treatment, with the initial report
on top, and numbered consecutively; the party must also serve the party who
prepared the first set of binder with a copy of the supplemental binder
together with an affidavit verifying that the binder is identical to the
supplemental binder filed with the board;
(4) the party, who receives additional
medical records after the binder has been prepared and filed with the board, to
make two copies of the additional medical records, put the copies in two
separate binders in chronological order by date of treatment, with the initial
report on top, and number the copies consecutively; the party must file one
binder with the board not later than seven days after receiving the medical
records; the party must serve the other additional binder on the opposing
party, together with an affidavit stating the binder is identical to the binder
filed with the board, not later than seven days after receiving the medical
records;
(5) repealed 5/12/2019
(A) if all parties are represented by
counsel, the board designee shall submit to the physician all questions
submitted by the parties in addition to and at the same time as the questions
developed by the board designee;
(B) if any party is not represented by
counsel, only questions developed by the board designee shall be submitted to
the physician; however, the board designee may consider and include questions
submitted by the parties;
(C) if
any party objects to any questions submitted to the physician, that party shall
file a petition with the board and serve all other parties not later than 10
days after receipt of the questions; the objection must be preserved in the
record for consideration by the board at a hearing on the merits of the claim,
or, upon the petition of any party objecting to the questions, at the next
available procedural hearing day; failure by a party to file and serve an
objection does not result in waiver of that party's right to later argue the
questions were improper, inadequate, or otherwise ineffective;
(D) any questions submitted for purposes of
this paragraph must be prepared in accordance with
8 AAC 45.114(3) and
(4).
(i) The report of the physician who is
serving as a second independent medical examiner must be done not later than 14
days after the evaluation ends. The evaluation ends when the physician reviews
the medical records provided by the board, receives the results of all
consultations and tests, and examines the injured worker, if that is necessary.
The board will presume the evaluation ended after the injured worker was
examined. If the evaluation ended at a later date, the physician must state in
the report the date the evaluation was done. An examiner's report must be
received by the board not later than 21 days after the evaluation ended. If an
examiner's report is not timely received by the board, a party may file a
petition asking that another physician be selected to serve as a second
independent medical examiner. The board or its designee may select another
physician to serve as a second independent medical examiner, and will make the
selection in accordance with this section. Until the parties receive the second
independent medical examiner's written report, communications by and with the
second independent medical examiner are limited, as follows:
(1) a party or a party's representative and
the examiner may communicate as needed to schedule or change the scheduling of
the examination;
(2) the employee
and the examiner may communicate as necessary to complete the
examination;
(3) the examiner's
communications with a physician who has examined, treated, or evaluated the
employee must be in writing, and a copy of the written communication must be
sent to the board and the parties; the examiner must request the physician
report in writing and request that the physician not communicate in any other
manner with the examiner about the employee's condition, treatment, or
claim.
(j) After a party
receives an examiner's report, communication with the examiner is limited as
follows and must be in accord with this subsection. If a party wants the
opportunity to
(1) submit written questions
or depose the examiner, the party must
(A)
file with the board and serve upon the examiner and all parties, not later than
30 days after receiving the examiner's report, a notice of scheduling a
deposition or copies of the written questions; if notice or the written
questions are not served in accordance with this paragraph, the party waives
the right to question the examiner unless the opposing party gives timely
notice of scheduling a deposition or serves written questions; and
(B) initially pay the examiner's charges to
respond to the written questions or for being deposed; after a hearing and in
accordance with
AS
23.30.145 or
23.30.155(d),
the charges may be awarded as costs to the prevailing party;
(2) communicate with the examiner
regarding the evaluation or report, the party must communicate in writing,
serve the other parties with a copy of the written communication at the same
time the communication is sent or personally delivered to the examiner, and
file a copy of the written communication with the board; or
(3) question the examiner at a hearing, the
party must initially pay the examiner's fee for testifying; after a hearing and
in accordance with
AS
23.30.145 or
AS
23.30.155(d), the board
will, in its discretion, award the examiner's fee as costs to the prevailing
party.
(k) If a party's
communication with an examiner is not in accordance with (j) of this section,
the board may not admit the evidence obtained by the communication at a hearing
and may not consider it in connection with an agreed settlement.
Notes
Authority:AS 23.30.005
AS 23.30.095
AS 23.30.110
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