Rule 63: Independent Medical Examiners — Selection

Words in italics are defined in Rule 49.

A. Once a dispute regarding medical, surgical, or hospital services furnished or to be furnished under the Nebraska Workers’ Compensation Act has arisen any party or the court on its own motion may submit the dispute for a medical finding by an independent medical examiner.

B. If the parties to a dispute cannot agree on an independent medical examiner of their own choosing, the court shall assign one from the list of qualified independent medical examiners maintained by the court. Assignments by the court from the list shall be made by means of a revolving selection process established by the court, and may take into account the specialty and location of the examiner. The requesting party may express a preference with regard to the specialty of the physician when submitting a request for assignment, but the court shall not be bound by such preference when making an assignment.

C. A request for assignment pursuant to Rule 63 or notice of agreement pursuant to Rule 67 must be received more than 60 days before trial. An assignment will not be made unless the trial is continued to a date more than 60 days from the request.

D. In order to be eligible for assignment, a qualified independent medical examiner:

1. shall not be the employee’s treating physician with respect to the injury for which the claim is being made, and shall not have treated the employee with respect to such injury; and

2. shall not have previously examined the employee at the request of any party with respect to the injury for which the claim is being made.

E. To request assignment of a qualified independent medical examiner the requesting party shall complete and forward to the court an application form developed by the court setting out any questions or issues that they wish to submit to the independent medical examiner. At the same time, the requesting party shall serve a copy of the application on all other parties and shall file proof of service with the court. Service shall be made by regular mail or secure email, and proof of service shall be made by certificate of the party causing the service to be made. Within 10 business days of being served the other parties shall submit to the court in writing any questions or issues that they wish to submit to the independent medical examiner. The court shall assign a qualified independent medical examiner within five business days thereafter, and shall issue a notification by regular mail or secure email to the examiner and the parties to include:

1. the name, address and telephone number of the assigned examiner;

2. an identification of the disputed issues upon which the independent medical examiner shall render a finding;

3. the obligation of the insurer, risk management pool, or self-insured employer to provide copies of records and information pursuant to Rule 63,E;

4. the obligation of any party, other than the insurer, risk management pool, or self-insured employer, to provide copies of records and information pursuant to Rule 63,F; and

5. any other information as determined by the court.

Once an independent medical examiner has been assigned, submission of additional questions by either party shall not be allowed without prior approval of the court.

F. Following notice of assignment by the court, or notice of agreement by the parties pursuant to Rule 67,A, the insurer, risk management pool, or self-insured employer shall send to the examiner copies of all records and information in its possession that are relevant to the disputed issues, and shall send to all other parties and to the court a description of all such records and information. Such copies, information and description shall be sent by regular mail or secure email as directed by the court within 10 business days of receipt of the notification of assignment or agreement, at no cost to the examiner, the court or any other party.

G. Following receipt of the description of records and information from the insurer, risk management pool, or self-insured employer, any other party shall send to the examiner copies of any relevant records and information in its possession that were not previously provided by the insurer, risk management pool, or self-insured employer, and shall send to all other parties and to the court a description of all such records and information. Such copies, information and description shall be sent by regular mail or secure email as directed by the court within 10 business days of receipt of the description from the insurer, risk management pool, or self-insured employer, at no cost to the examiner, the court or any other party.

H. If no records or information are in the possession of the insurer, risk management pool, or self-insured employer as provided in Rule 63,E or any other party as provided in Rule 63,F, then a letter to this effect shall be sent to the examiner by regular mail or email with copies to all other parties and the court, together with information as to the location of any records or information of which they are aware but which are not in their possession. Necessary records not in the possession of any party, including any records requested by the examiner, shall be obtained by the party most able to do so, with the cost to be paid by the insurer, risk management pool, or self-insured employer.

I. All records and information provided pursuant to Rule 63,E and 63,F shall be in chronological order by provider, and shall be accompanied by an index to the submitted records and information.

J. An independent medical examiner assigned by the court or agreed to by the parties pursuant to Rule 67 to render a medical finding shall not refer the employee for treatment, nor shall the examiner treat the employee with respect to the injury for which the claim is being made unless the examiner:

1. has completed his or her duties as the independent medical examiner;

2. agrees to treat the employee; and

3. either becomes the primary treating physician as agreed to by the employee and employer, or is selected by the employee to do surgery when the injury involves dismemberment or a major surgical operation.

K. An independent medical examiner may decline assignment by the court only for good cause shown.

L. If an independent medical examiner has submitted a written report pursuant to Rule 64,E stating findings on the questions or issues raised, no party may request court assignment of another independent medical examiner on the same questions or issues.

M. Disputes relating to treatment provided or to be provided through a managed care plan shall be processed through the internal dispute resolution procedures of the managed care plan prior to the filing with the court of a request for assignment of an independent medical examiner.