Barker v. W.A. Kendall & Co.: IME No-show not necessarily the ultimate no-no

Barker v. W..A. Kendall & Co., 2011-78928 (WCB 2013):  KRS 342.205(3) does not permit the ALJ to dismiss a claimant’s claim for failure to attend a medical examination.

This is an opinion of the Kentucky Workers’ Compensation Board (WCB).  On four separate occasions during the course of litigation, Claimant Barker (Barker) failed to attend a properly scheduled independent medical examination. Following the forth failure, the ALJ dismissed the claim, relying in part on CR 37.02, a general rule of procedure pertaining to a party’s failure to comply with discovery orders or to permit discovery, with sanctions including dismissal; and 803 KAR 25:010, Sections 8 (dealing with discovery, evidence and the exchange of records), 17 (taking of discovery and depositions), and 24 (prosecuting or defending without reasonable grounds).  The Board found that none of the sections relied upon by the ALJ spoke to sanctions for a missed medical examination. It found, specifically, that KRS 342.205(3) unambiguously sets out the appropriated sanction, which provides:

If an employee refuses to submit himself to or in any way obstructs the examination, his right t o take or prosecute any proceedings under this chapter shall be suspended until the refusal or obstruction ceases.  No compensation shall be payable for the period during which the refusal or obstruction continues.

The Board further noted that under rules of statutory construction, a specific statute (KRS 342.205(3)) controls over a general statute (CR 37.02). Thus, the Board vacated the order dismissing with prejudice and remanded for the ALJ to enter an amended order imposing only sanctions under KRS 342.205.

By |2013-09-08T20:55:36+00:00September 8th, 2013|