Printable Format44-515. Medical examinations; suspension of benefits; travel and living expenses; availability of reports; disqualification of certain medical evidence; consideration of health care providers' opinions. (a) After an employee sustains an injury, the employee shall, upon request of the employer, submit to an examination at any reasonable time and place by any one or more reputable health care providers, selected by the employer, and shall so submit to an examination thereafter at intervals during the pendency of such employee's claim for compensation, upon the request of the employer, but the employee shall not be required to submit to an examination oftener than twice in any one month, unless required to do so in accordance with such orders as may be made by the director. All benefits shall be suspended to an employee who refuses to submit to such examination or examinations until such time as the employee complies with the employer's request. The suspension of benefits shall occur even if the employer is under preliminary order to provide such benefits. Any employee so submitting to an examination or such employee's authorized representative shall upon written request be entitled to receive and shall have delivered to such employee a copy of the health care provider's report of such examination within a reasonable amount of time after such examination, which report shall be identical to the report submitted to the employer. If the employee is notified to submit to an examination before any health care provider in any town or city other than the residence of the employee at the time that the employee received an injury, the employee shall not be required to submit to an examination until such employee has been furnished with sufficient funds to pay for transportation to and from the place of examination at the rate prescribed for compensation of state officers and employees under K.S.A. 75-3203a, and amendments thereto, for each mile actually and necessarily traveled to and from the place of examination, any turnpike or other tolls and any parking fees actually and necessarily incurred, and in addition the sum of $15 per day for each full day that the employee was required to be away from such employee's residence to defray such employee's board and lodging and living expenses. The employee shall not be liable for any fees or charge of any health care provider selected by the employer for making any examination of the employee. The employer or the insurance carrier of the employer of any employee making claim for compensation under the workers compensation act shall be entitled to a copy of the report of any health care provider who has examined or treated the employee in regard to such claim upon written request to the employee or the employee's attorney within a reasonable amount of time after such examination or treatment, which report shall be identical to the report submitted to the employee or the employee's attorney.
(b) If the employee requests, such employee shall be entitled to have health care providers of such employee's own selection present at the time to participate in such examination.
(c) Unless a report is furnished as provided in subsection (a) and unless there is a reasonable opportunity thereafter for the health care providers selected by the employee to participate in the examination in the presence of the health care providers selected by the employer, the health care providers selected by the employer or employee shall not be permitted afterwards to give evidence of the condition of the employee at the time such examination was made.
(d) Except as provided in this section, there shall be no disqualification or privilege preventing the furnishing of reports by or the testimony of any health care provider who actually makes an examination or treats an injured employee, prior to or after an injury.
(e) Any health care provider's opinion, whether the provider is a treating health care provider or is an examining health care provider, regarding a claimant's need for medical treatment, inability to work, prognosis, diagnosis and disability rating shall be considered and given appropriate weight by the trier of fact together with consideration of all other evidence.
History: L. 1927, ch. 232, § 15; L. 1955, ch. 250, § 6; L. 1967, ch. 280, § 6; L. 1974, ch. 203, § 23; L. 1977, ch. 174, § 3; L. 1980, ch. 146, § 4; L. 1990, ch. 182, § 6; L. 1990, ch. 183, § 6; L. 1991, ch. 144, § 5; L. 2011, ch. 55, § 14; May 15.
Source or prior law:
L. 1911, ch. 218, § 17; L. 1917, ch. 226, § 6; R.S. 1923, 44-515; see also, 44-517.
Cross References to Related Sections:
Paragraph (d) as compared to code of civil procedure, see 60-427.
Law Review and Bar Journal References:
"Changes in Workmen's Compensation," William F. Morrissey, 36 J.B.A.K. 173, 174 (1967).
Use of physical and mental examinations discussed in "Discovery Techniques in Workmen's Compensation: Largely Undiscovered?" Robert Fowks, 42 J.B.A.K. 83 (1973).
"Preparation and Presentation of the Claimant's Case," Gary L. Jordan, 3 J.K.T.L.A. No. 6, 17 (1980).
"Workers' Compensation: The Exclusive Remedy Rule is Alive and Well in Kansas [Hormann v. New Hampshire Insurance Co. , 236 Kan. 190, 689 P.2d 837 (1984)]," Janet K. Kerr, 25 W.L.J. 192, 199 (1985).
"Workers' Compensation Review," Patrick Nichols, J.K.T.L.A. Vol. XVIII, No. 1, Work. Comp. Review Section, 1, 2 (1994).
"Worker's Compensation Review," J.K.T.L.A. Vol. XIX, No. 5, Review Section, 1, 4 (1996).
"Worker's Compensation Review," J.K.T.L.A. Vol. XX, No. 4, Review Section, 25 (1997).
"Workers Compensation Review," J.K.T.L.A. Vol. XXI, No. 3, Review Section, 22 (1998).
"Workers Compensation Review," Patrick R. Nichols, J.K.T.L.A. Vol. 23, No. 6, 20 (2000).
"Workers Compensation Review," Jan L. Fisher, Editor, J.K.T.L.A. Vol. 26, No. 4, 26 (2003).
"Workers Compensation Review," Jan L. Fisher, Editor, J.K.T.L.A. Vol. 27, No. 4, 18 (2004).
"Workers Compensation Review," Jan L. Fisher, Editor, J.K.T.L.A. Vol. 27, No. 3, 25 (2004).
"Workers Compensation Review," Jan L. Fisher, Editor, J.K.T.L.A. Vol. 28, No. 1, 19 (2004).
"Workers Compensation Review," Joseph Seiwert, Editor, J.K.T.L.A. Vol. 30, No. 4, 19 (2007).
"Workers Compensation Review," Joseph Seiwert, Editor, J.K.T.L.A. Vol. 30, No. 6, 25 (2007).
"Workers Compensation Review," Joseph Seiwert, Editor, J.K.A.J. Vol. 34, No. 4, 19 (2011).
Attorney General's Opinions:
Requirement for medical examinations; differences between Americans with Disabilities Act and Kansas Workers Compensation Act. 1999-35.
CASE ANNOTATIONS
Explanation, see Revisor's Note under Article title, chapter 44, article 5.
Cases through 1973
IN GENERAL (1-7)
1. One of primary purposes of act is to stimulate the settlement of compensation disputes; knowledge of actual extent of disability increases opportunity for settlement and works to the mutual advantage of the parties. Thompson v. Swenson Construction Co., 158 Kan. 49, Syl. 4, 145 P.2d 166 (1944).
2. Legislative reasoning for appointment of neutral physician in some cases discussed. Meek v. Wheeler, etc., Investment Co., 122 Kan. 69, 72, 251 P. 184 (1926).
3. Order requiring physical examination is not appealable. Chippeaux v. Western Coal and Mining Co., 124 Kan. 475, 477, 478, 260 P. 625 (1927).
4. Medical examination to evaluate disability does not constitute medical treatment; limitation statute for filing claim not tolled (three specially concurring opinions and one dissent). Thompson v. Swenson Construction Co., 158 Kan. 49, 54, 145 P.2d 166 (1944).
5. Disallowance of examination expenses reviewed and reversed. Thompson v. General Machine & Tool Co., 135 Kan. 705, 710, 11 P.2d 685 (1932).
6. Expert medical testimony carefully reviewed; held not sufficient evidence to sustain verdict. Kelsey v. Armour & Co., 119 Kan. 837, 241 P. 453 (1925).
7. Defendant produced medical testimony of pyorrhea causing aggravation of neuritis; claimant failed to rebut; evidence insufficient to support award of compensation. Goodwin v. Sinclair Pipe Line Co., 136 Kan. 8, 15, 16, 17, 12 P.2d 842 (1932).
MEDICAL EXAMINATION (10-14)
10. "Reasonable time" defined; under facts employer's request employee submit to medical examination unreasonable; rights to compensation not suspended under K.S.A. 44-518. Zimmerman v. O'Neill Tank Co., 188 Kan. 306, 307, 309, 310, 362 P.2d 10 (1961).
11. Examination date must be when examination would serve useful purpose in proceeding pending. Zimmerman v. O'Neill Tank Co., 188 Kan. 306, 307, 309, 310, 362 P.2d 10 (1961).
12. Objection to place of examination should be timely made. Lefebvre v. Western Coal and Mining Co., 131 Kan. 1, 10, 289 P. 394 (1930).
13. This section applies during pendency of a claim or upon application for review of award but not otherwise. Lenon v. Standard Oil Co., 134 Kan. 289, 292, 5 P.2d 853 (1931).
14. Denial of disability welfare benefits for refusal to submit to medical examination on religious grounds not abridgment of religious freedom hereunder. Powers v. State Department of Social Welfare, 208 Kan. 605, 616, 493 P.2d 590 (1972).
PERSONAL PHYSICIAN, RIGHTS (15-16)
15. Widow not required to notify husband's employer of autopsy. Golden v. Wilson & Co., 129 Kan. 100, 281 P. 860 (1929).
16. Employer's physician not permitted to testify unless reasonable opportunity given employee to have physician. Chippeaux v. Western Coal and Mining Co., 124 Kan. 475, 478, 260 P. 625 (1927).
TESTIMONY (17-18)
17. Purpose of act, nature of inquiry and the statute itself [clause (d)] preclude the application of the civil code provisions to privileged communications of physicians. Doty v. Crystal Ice & Fuel Co., 118 Kan. 323, 326, 235 P. 96 (1925); 122 Kan. 653, 243 P. 611 (1927).
18. Dead workman's physicians may testify although employer had no knowledge of treatment. Bradshaw v. Eagle Picher Lead Co., 121 Kan. 525, 527, 247 P. 644 (1926).
Cases after 1973
19. Cited; testifying physician's reliance on medical evidence of other physicians in expressing own opinion examined. Boeing Military Airplane Co. v. Enloe, 13 Kan. App. 2d 128, 130, 764 P.2d 462 (1988).
20. Statute does not require employer to obtain approval in referring claimant to alternate or additional health care providers. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 214 P.3d 676 (2009).