A. In the event of a dispute concerning any medical issue, if the parties cannot agree upon the use of a specific independent medical examiner, either party may petition a workers' compensation judge for permission to have the worker undergo an independent medical examination. The independent medical examination shall be performed immediately, pursuant to procedures adopted by the director, by a health care provider other than the designated health care provider, unless the employer and the worker otherwise agree.

B. In deciding who may conduct the independent medical examination, the workers' compensation judge shall not designate the health care provider initially chosen by the petitioner. The workers' compensation judge shall designate a health care provider on the approved list of persons authorized by the committee appointed by the advisory council on workers' compensation to create that list. The decision of the workers' compensation judge shall be final. The employer shall pay for any independent medical examination.

C. Only the health care provider who has treated the worker pursuant to Section 52-3-15 NMSA 1978 or the health care provider providing the independent medical examination pursuant to this section may offer testimony at any workers' compensation hearing concerning the particular disablement in question.

D. If, pursuant to Subsection D of Section 52-3-15 NMSA 1978, the injured worker selects a new health care provider, the employer shall be entitled to periodic examinations of the worker by the health care provider he previously selected. Examinations may not be required more frequently than at six-month intervals; except that upon application to the workers' compensation judge having jurisdiction of the claim and after reasonable cause therefor, examinations within six-month intervals may be ordered. In considering such applications, the workers' compensation judge should exercise care to prevent harassment of the claimant.

E. If the employer requests an independent medical examination or an examination pursuant to Subsection D of this section, the worker shall travel to the place at which the examination shall be conducted. Within thirty days after the examination, the worker shall be compensated by the party requesting the examination for all necessary and reasonable expenses incidental to submitting to the examination, including the cost of travel, meals, lodging, loss of pay or other like direct expense, but the amount to be compensated for meals and lodging shall not exceed that allowed for nonsalaried public officers under the Per Diem and Mileage Act [10-8-1 to 10-8-8 NMSA 1978].

F. No attorney shall be present at any examination authorized under this section.

G. Both the employer and the worker shall be given a copy of the report of the examination of the worker made by the independent health care provider pursuant to this section.

H. If a worker fails or refuses to submit to examination in accordance with this section, he shall forfeit all disablement compensation benefits that would accrue or become due to him except for such failure or refusal to submit to examination during the period that he persists in such failure and refusal unless he is by reason of disability unable to appear for examination.

I. If any employee persists in any unsanitary or injurious practice that tends to imperil, retard or impair his recovery or increase his disability or refuses to submit to such medical or surgical treatment as is reasonably essential to promote his recovery, the workers' compensation judge may in his discretion reduce or suspend the employee's disablement compensation benefits.

History: 1978 Comp., § 52-3-39, enacted by Laws 1987, ch. 235, § 40; 1989, ch. 263, § 61; 1990 (2nd S.S.), ch. 2, § 38.

Repeals and reenactments. — Laws 1987, ch. 235, § 40 repealed former 52-3-39 NMSA 1978, as amended by Laws 1986, ch. 22, § 63 and enacted a new 52-3-39 NMSA 1978, effective June 19, 1987.

The 1990 (2nd S.S.) amendment, effective January 1, 1991, rewrote the section, including the catchline, to the extent that a detailed comparison would be impracticable.

Expert testimony. — The standard for admitting expert testimony established by Daubert v. Merrel Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), as adopted in New Mexico by State v. Alberico, 1993-NMSC-047, 116 N.M. 156, 861 P.2d 192, does not apply to the testimony of a health care provider pursuant to Section 52-1-28(B) or 52-3-32 NMSA 1978. Banks v. IMC Kalium Carlsbad Potash Co., 2003-NMSC-026, 134 N.M. 421, 77 P.3d 1014.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 82 Am. Jur. 2d Workers' Compensation §§ 389 to 391, 504 to 506.

99 C.J.S. Workmen's Compensation §§ 318, 319; 100 C.J.S. Workmen's Compensation § 484.