Tam v. Permanente2/8/2001
he examination, her "right to claim compensation may, after hearing by the Director, be suspended." On April 23, 1995, Tam informed Kaiser that she had "chosen not to attend the [medical examination] . . . ordered by the Director," indicating that she would pursue an appeal.
On May 2, 1995, Kaiser requested that the DLIR suspend Tam's eligibility for workers' compensation benefits for failure to comply with the medical examination order, as mandated by HRS § 386-79, see supra note 1. The DLIR conducted a hearing regarding Kaiser's request on July 26, 1995. In a decision dated September 19, 1995, the Director rejected Tam's arguments that (1) Kaiser's request for a medical examination order was defective, inasmuch as it did not state the purpose and justification of the request with specificity, (2) the DLIR's order was defective for similar reasons, (3) a medical examination order may not be justified by a need for a permanent impairment rating, and (4) the current law did not entitle Kaiser to more than one medical examination order. Accordingly, the Director ruled as follows:
Upon review of the matter, the Director finds that the [medical examination] order of April 13, 1995 is proper and predicated upon adequate foundation and as such constitutes a legal and proper order.
The Director, upon review of the employer's [medical examination] order request and in light of customary procedure, finds such request to have adequate purpose and reasonable foundation. As the employer is entitled to have the claimant examined by a physician for purposes of determining permanent impairment, at the time of said report , the mechanism of [a medical examination] order was the proper method for affirming the employer's rights. . . .
Accordingly, claimant's benefits shall be suspended until such time as the claimant complies with the Director's Order of April 13, 1995.
Tam appealed the Director's decision to the LIRAB on September 21, 1995.
On December 9, 1997, Tam attempted to subpoena the administrator of the DLIR's Disability Compensation Division, two members of Kaiser's staff, and Kaiser's counsel. In a memorandum filed on February 9, 1998, Tam argued that the subpoenas were necessary in order to discover any ex parte communications between Kaiser and the DLIR, other than the form letter of April 5, 1995 from DLIR to Kaiser mentioned supra, and thereby gather evidence of bias on the DLIR's part in issuing the April 13, 1995 medical examination order. On February 12, 1998, the LIRAB issued an order denying Tam's subpoena request.
The LIRAB heard Tam's appeal on March 20, 1998. On September 3, 1999, the LIRAB issued a decision and order, which affirmed the Director's September 19, 1995 decision, and stated in relevant part as follows:
The sole issue on appeal is whether the Director erred in suspending Claimant's benefits until such time as she complies with the Director's April 13, 1995 Order.
9. The Director issued the April 13, 1995 Order under the governing law, HRS § 386-79 and § 12-10-75 of the Hawai i Administrative Rules Relating to Workers' Compensation (Rules), in effect on April 13, 1995.
HRS § 386-79 requires an injured employee, whenever ordered by the Director, to submit to an examination by the employer's physician.
11. Contrary to the Claimant's contentions, we find that Employer has met the requirements of HRS § 386-79 and § 12-10-75(b) of the . Employer initially requested the issuance of the medical examination order because of Claimant's refusal to attend and then complete Dr. Luke's examination and to facilitate the expedient disposition of the case. Employer
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