THE SENATE

S.B. NO.

207

THIRTIETH LEGISLATURE, 2019

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO WORKERS' COMPENSATION.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


SECTION 1. Section 386-79, Hawaii Revised Statutes, is amended to read as follows:

"386-79 [Medical examination by employer's physician.] Requested mutual examination. [(a) After an injury and during the period of disability, the employee, whenever ordered by the director of labor and industrial relations, shall submit to examination, at reasonable times and places, by a duly qualified physician or surgeon designated and paid by the employer. The employee shall have the right to have a physician, surgeon, or chaperone designated and paid by the employee present at the examination, which right, however, shall not be construed to deny to the employer's physician the right to visit the injured employee at all reasonable times and under all reasonable conditions during total disability. The employee shall also have the right to record such examination by a recording device designated and paid for by the employee; provided that the examining physician or surgeon approves of the recording.

If an employee refuses to submit to, or the employee or the employee's designated chaperone in any way obstructs such examination, the employee's right to claim compensation for the work injury shall be suspended until the refusal or obstruction ceases and no compensation shall be payable for the period during which the refusal or obstruction continues.

(b) In cases where the employer is dissatisfied with the progress of the case or where major and elective surgery, or either, is contemplated, the employer may appoint a physician or surgeon of the employer's choice who shall examine the injured employee and make a report to the employer. If the employer remains dissatisfied, this report may be forwarded to the director.

Employer requested examinations under this section shall not exceed more than one per case unless good and valid reasons exist with regard to the medical progress of the employee's treatment. The cost of conducting the ordered medical examination shall be limited to the complex consultation charges governed by the medical fee schedule established pursuant to section 386-21(c).]

(a) Following an injury and after a claim is filed by the injured employee, the employer may appoint a qualified physician mutually agreed upon by the parties and paid for by the employer, to conduct an independent medical examination or a permanent impairment rating examination of the injured employee and make a report to the employer.

(b) The cover letter to the physician selected to perform an examination under this section shall notify the physician that the physician has been mutually selected by the parties to conduct an independent examination. The cover letter shall be transmitted to the injured employee at least five working days prior to the appointment. Upon the issuance of the report of the independent medical examination or permanent impairment rating examination, the employee or employee's representative shall be promptly provided with a copy thereof.

(c) A physician selected pursuant to this section to perform an independent medical examination or a permanent impairment rating examination shall be willing to undertake the examination and be paid by the employer. The selected physician shall be currently licensed to practice in Hawaii pursuant to chapter 442, 448, 453, 455, 457, 459, 463E, or 465; except that upon approval by the director, a physician in a specialty area who resides outside of the State and is licensed in another state as a physician with requirements equivalent to a physician's license under chapter 442, 448, 453, 455, 457, 459, 463E, or 465, may be selected if no physician licensed by the State in that specialty area is available to conduct the examination.

If the employee does not reside in Hawaii, a physician who is licensed in and who resides in the state of the employee's residence may be selected if that state's physician licensing requirements are equivalent to a physician's license under chapter 442, 448, 453, 455, 457, 459, 463E, or 465.

If the parties are unable to mutually agree on the selection of a physician to conduct the independent medical examination or permanent impairment rating examination, then the director shall appoint a duly qualified impartial physician to examine the injured employee and to prepare a report to the employer. The fees for such examination shall be paid from the funds appropriated by the legislature for use by the department.

Any physician mutually selected or otherwise appointed to perform an independent medical examination or permanent impairment rating examination pursuant to this section shall examine the employee within forty-five days of receiving notice of the selection or appointment, or otherwise, as soon as possible.

(d) In no event shall an independent medical examination and a permanent impairment rating examination be combined into a single medical examination unless the employee consents in writing to the single examination by the selected physician.

In no event shall the director, appellate board, or a court, order more than one requested independent medical examination and one permanent impairment rating examination per case, unless valid reason exists with regard to the medical progress of the employee's medical treatment or when major surgery or elective surgery is contemplated. In the event of multiple examinations, the process of mutually selecting or otherwise appointing a physician set forth in this section shall apply.

(e) The employee shall have the right to have a physician, surgeon, or chaperone designated and paid by the employee present at the examination, which right, however, shall not be construed to deny to the selected physician the right to visit the injured employee at all reasonable times and under all reasonable conditions during total disability. The employee shall also have the right to record such examination by a recording device designated and paid for by the employee. If an employee refuses to submit to, or the employee or the employee's designated chaperone in any way obstructs such examination, the employee's right to claim compensation for the work injury shall be suspended until the refusal or obstruction ceases and no compensation shall be payable for the period during which the refusal or obstruction continues.

The cost of conducting the ordered independent medical examination or permanent impairment rating examination shall be limited to the complex consultation charges governed by the medical fee schedule established pursuant to section 386-21(c).

(f) When an employee has attained medical stability as determined by the employee's attending physician, a physician may be appointed to conduct a permanent impairment rating examination. The physician shall be mutually selected by the parties or otherwise appointed pursuant to this section.

For the purposes of this subsection, "medical stability" means that no further improvement in the injured employee's work-related condition can reasonably be expected from curative health care or the passage of time. Medical stability is also deemed to have occurred when the injured employee refuses to undergo further diagnostic tests or treatment that the physician believes will greatly aid in the employee's recovery."

SECTION 2. Act 172, Session Laws of Hawaii 2017, is amended by amending section 4 to read as follows:

"SECTION 4. This Act shall take effect upon its approval[; provided that on June 30, 2019, this Act shall be repealed and section 386-79, Hawaii Revised Statutes, shall be reenacted in the form in which it read on the day before the effective date of this Act]."

SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act shall take effect on June 29, 2019.

 

INTRODUCED BY:

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Report Title:

Workers' Compensation; Medical Examination

 

Description:

Amends requirements for medical examinations in workers' compensation claims by requiring that the examining physician be mutually selected by the employer and employee or appointed by the Director of Labor. Provides for document distribution, cost allocation, and physician qualifications.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.