Title 8 . Labor and Workforce Development

Chapter 45 . Fishermen's Fund

Section 90. Additional examination

8 AAC 45.090. Additional examination

(a) The board will, in its discretion, direct an employee who was injured before July 1, 1988, to be examined by an independent medical examiner in accordance with 8 AAC 45.092, and direct the independent medical examiner to provide the board and the parties with a complete report of findings, opinions, and recommendations, whenever in the board's opinion

(1) a physician has not impartially estimated the degree of permanent impairment or the extent of temporary impairment, or has not rated the degree of permanent impairment in accordance with 8 AAC 45.122;

(2) contradictory medical evidence exists; or

(3) the employee's best interests require it.

(b) Except as provided in (g) of this section, regardless of the date of an employee's injury, the board will require the employer to pay for the cost of an examination under AS 23.30.095 (k), AS 23.30.110 (g), or this section.

(c) If an injury occurred before July 1, 1988, an examination requested by the employer not less than 14 days after the injury, and every 60 days after that, is presumed reasonable, unless the presumption is overcome by a preponderance of the evidence, and the employee shall submit to an examination by the employer's choice of physician without further request or order by the board. Unless medically appropriate to obtain new diagnostic data, the physician shall use existing diagnostic data to complete the examination.

(d) Regardless of the date of an employee's injury, the employer must

(1) give the employee and the employee's representative, if any, at least 10 days' notice of the examination scheduled by the employer;

(2) arrange, at least 10 days in advance of the examination date, for the employee's transportation expenses to the examination under AS 23.30.095 (e), AS 23.30.095 (k), AS 23.30.110 (g), or this section, at no cost to the employee if the employee must travel more than 100 road miles for the examination or, if the employee cannot travel on a government-maintained road to attend the examination, arrange for the transportation expenses by the most reasonable means of transportation; and

(3) arrange, at least 10 days in advance of the examination date, for the employee's room and board at no cost to the employee if the examination under AS 23.30.095 (e), AS 23.30.095 (k), AS 23.30.110 (g), or this section, requires the employee to be away from home overnight.

(e) If the employer fails to give timely notice of the examination date or fails to arrange for room and board or transportation expenses in accordance with (d) of this section, and if the employee objects to attending the examination because the employer failed to comply with (d) of this section, the employer may not suspend benefits under AS 23.30.095 (e).

(f) If a physician examines an employee at the employer's request and if the employer objects to the board's consideration of the physician's report unless the physician is made available for cross-examination, the phrase "furnished and paid for by the employer" in AS 23.30.095 (e) includes paying in advance all the employee's costs for making the physician available for cross-examination.

(g) If an employee does not attend an examination scheduled in accordance with AS 23.30.095 (e), AS 23.30.095 (k), AS 23.30.110 (g), or this section,

(1) the employer will pay the physician's fee, if any, for the missed examination; and

(2) upon petition by a party and after a hearing, the board will determine whether good cause existed for the employee not attending the examination; in determining whether good cause existed, the board will consider when notice was given that the employee would not attend, the reason for not attending, the willfulness of the conduct, any extenuating circumstances, and any other relevant facts for missing the examination; if the board finds

(A) good cause for not attending the examination did not exist, the employee's compensation will be reduced in accordance with AS 23.30.155 (j) to reimburse the employer the physician's fee and other expenses for the unattended examination; or

(B) good cause for not attending the examination did exist, the physician's fee and other expenses for the unattended examination is the employer's responsibility.

History: In effect before 7/28/59; am 5/28/83, Register 86; am 12/14/86, Register 100; am 3/16/90, Register 113; am 7/20/97, Register 143; am 7/2/98, Register 146; am 3/13/2004, Register 169

Authority: AS 23.30.005

AS 23.30.095

AS 23.30.110

AS 23.30.155