10-Day window for selection of an impartial physician
When a claim or complaint involving a dispute over medical issues is the subject of an appeal of a conference order pursuant to MGL c. 152, § 10A, if the parties select an impartial medical examiner from the roster, then the parties must submit their choice to the administrative judge within 10 calendar days of filing the appeal; in the alternative, the administrative judge may appoint an examiner from the roster, or may direct the impartial unit to make an appointment.
Practice Note
As a practical matter, the selection of the impartial physician is made at the conference. Attorneys generally do not like to select the impartial physician, for fear of an adverse report and client criticism, preferring to leave the selection to the impartial unit or the administrative judge. The parties may indicate to the judge that they agree that certain physicians will not be used.
Information for impartial physician
After the impartial physician is selected or appointed, the administrative judge submits all approved medical records, along with any hypothetical fact patterns and stipulations of fact, to the impartial unit to forward to the impartial physician. 452 CMR § 1.14(2).
Scheduling deposition
No party or representative may initiate direct ex parte communication with the impartial physician nor submit any form of documentation to the impartial physician without the express consent of the administrative judge. The impartial physician may not communicate with the parties unless authorized by the administrative judge, except that a party who wishes to engage the impartial physician to be deposed for the purposes of cross-examination may contact the physician, or the physician's office, to schedule a deposition. 452 CMR § 1.14(2).
Impartial's request to providers
The impartial physician may request medical records and reports from providers who have treated the employee prior to the date of the selection or appointment of the impartial physician. Providers of diagnostic services and testing shall send these records directly to the impartial physician upon request of the impartial physician or of the impartial unit. 452 CMR § 1.14(2).
Fee for services
A party requesting the appointment of an impartial physician by the senior judge under the provisions of MGL c. 152, § 8(4) is responsible for paying the impartial physician pursuant to MGL c. 152, § 13. 452 CMR § 1.14(4). This section is used when the claim or complaint is based solely on the reasonableness or necessity of a particular course of medical treatment.
Reasonable and necessary treatment
Any payment made by a party to an impartial physician appointed by the senior judge under the provisions of the second paragraph of MGL c. 152, § 8(4) shall be reimbursed by the insurer if the report determines that the particular course of medical treatment was appropriate. 452 CMR § 1.14(5).
Voluntary examination
Parties precluded by 452 CMR § 1.00 from procuring the appointment of an impartial medical examiner under MGL c. 152, § 11A(2) may, by agreement, petition the administrative judge having jurisdiction over the case for the appointment of an impartial physician. If the petition is granted, said impartial physician is paid by the requesting party in an amount consistent with that approved by the commissioner under MGL c. 152, § 11A(3). 452 CMR § 1.14(6).