The employer should pay for a medical examination in support of its case, according to the Board. The parties were disputing the extent of disability, and the employer wanted medical and vocational evaluations to develop its case. The claimant lived in Rosarito, Mexico, and the employer scheduled evaluations in San Diego, where the claimant had attended his own evaluations. The ALJ granted the employer’s motion to compel the evaluations in San Diego, and further ordered the clamant to pay his own expenses. The Board agreed with the ALJ’s order requiring the examinations in San Diego, but reversed the order requiring the claimant to pay his own expenses. The ALJ considered these evaluations to be an “aspect of discovery,” and the Board agreed. However, as an aspect of discovery, the Board stated that each party had to bear its own costs, such that, in this case, the Employer had to pay the claimant’s costs in attending the evaluations. The “Employer must bear the cost of obtaining its own evidence.” The Board also held that forcing the claimant to pay his own expenses was not an appropriate sanction for the claimant missing earlier appointments for evaluations. Instead, the appropriate remedy is to suspend the claimant’s compensation or certify the discovery dispute to the district court. Notably, the Board initially dismissed the claimant’s appeal, because the order from the ALJ was interlocutory. However, the Board decided that “its guidance [was] necessary to direct the course of the adjudicatory process” in the case, and granted a motion for reconsideration.
Pensado v. L-3 Communications Corp., BRB No. 14-0116 (4/30/14).
© 2018 Ira J. Rosenzweig