Opinion
Docket No. 85392.
Argued March 6, 1990 (Calendar No. 5).
Decided July 30, 1990.
Thomas F. Brill for the plaintiff.
Fitzgerald, Cox Hodgman (by Marsha M. Woods) for the defendants.
Amici Curiae:
Mark Granzotto, Monica Linkner, and Charles P. Burbach for Michigan Trial Lawyers Association.
McGinty, Brown, Jakubiak, Frankland, Hitch Henderson, P.C. (by Kenneth P. Frankland), for American Insurance Association.
We granted leave to appeal in this case to decide whether an employee has the right to have counsel present at a physical examination requested by an employer or its insurance carrier pursuant to § 385 of the Workers' Disability Compensation Act, and if so, whether counsel may make an audio recording of the examination.
MCL 418.385; MSA 17.237(385).
MCL 418.101 et seq.; MSA 17.237(101) et seq.
MCL 418.385; MSA 17.237(385) provides that "[t]he employee shall have the right to have a physician provided and paid for by himself or herself present at the examination." However, § 385 is silent as to whether an employee has the right to have an attorney present during the examination. We reject the argument that § 385 should be read in pari materia with MCL 600.1445(1); MSA 27A.1445(1), and apply the rule of statutory construction, expressio unius est exclusio alterius — the expression of one thing is the exclusion of another. We find that an employee may only be accompanied by a personal physician during a physical examination requested by the employer or its insurance carrier. To hold otherwise would render as surplusage the above-quoted sentence from § 385 which expressly prescribes that the employee has the right to have a physician present. Therefore, we hold that § 385 does not grant an employee the right to have counsel present during a physical examination requested by an employer, or its insurance carrier. In so doing, we find as moot the second issue regarding audio recordings. Accordingly, we reverse the decision of the Court of Appeals.
The order of this Court granting the application for leave to appeal provides in relevant part:
On order of the Court, the application for leave to appeal is considered, and it is granted limited to the issues (a) whether plaintiff's counsel has a right to be present at a physical examination requested by the employer or the carrier pursuant to MCL 418.385; MSA 17.237(385), and (b) if so, whether plaintiff's counsel may make an audio recording of the examination. [Emphasis added.]
I. FACTS AND PROCEEDINGS
On August 14, 1982, the plaintiff, Sylvia Feld, was injured in a work-related accident. Three days later, she filed an application for workers' compensation benefits, alleging a twisted neck and a sprain to the upper back, neck, and right hand. She later amended the petition to include a torn ligament in her left knee.
Pursuant to MCL 418.385; MSA 17.237(385), the defendants, Robert Charles Beauty Salon and its insurance carrier, requested that the plaintiff undergo a medical examination to be conducted by a physician of their choice. The plaintiff refused to appear for the examination unless she was accompanied by her attorney. On April 29, 1983, the hearing referee granted a motion for the defendants to suspend the payment of benefits until the plaintiff submitted herself for the medical examination. The referee held that "[p]laintiff's attorny [sic] has no right under the statute to be present at such examination." This decision was affirmed by the Workers' Compensation Appeal Board in its decision and order dated January 29, 1986.
1986 WCABO 43.
The plaintiff next filed an application for leave to appeal in the Court of Appeals. The Court dismissed the application for lack of jurisdiction, finding that no final order had been entered in the matter. The case was ultimately remanded to the bureau for a full hearing on the merits of the claim. However, a full hearing never took place because the plaintiff persisted in her refusal to undergo the examination requested by the defendants unless her counsel was present.
Order of the Court of Appeals, dated May 1, 1986 (Docket No. 90983).
For the second time, on November 5, 1986, the hearing referee dismissed the plaintiff's petition for a hearing "for the reason that plaintiff's attorney will not permit her to be examined without his attendance." With this decision, the referee added that "[t]his dismissal will permit plaintiff's attorney to appeal as a final order." Again, on May 28, 1987, the WCAB affirmed the decision of the referee.
Unpublished order of the WCAB, No 392, decided May 28, 1987.
The plaintiff then filed a second application for leave to appeal in the Court of Appeals, which was granted. In its opinion, dated January 17, 1989, the Court of Appeals reversed the decision of the WCAB and held that the plaintiff did have the right to have her attorney present at the medical examination requested by the defendants, and that the attorney may make "unobtrusive audio recordings" of the examination. 174 Mich. App. 309, 320; 435 N.W.2d 474 (1989). The defendants sought leave to appeal, which we granted on September 28, 1989.
433 Mich. 881 (1989).
II. ANALYSIS
The limited issue in this case centers on the statutory construction of MCL 418.385; MSA 17.237(385), which provides in relevant part:
After the employee has given notice of injury and from time to time thereafter during the continuance of his or her disability, if so requested by the employer or the carrier, he or she shall submit himself or herself to an examination by a physician or surgeon authorized to practice medicine under the laws of the state, furnished and paid for by the employer or the carrier. If an examination relative to the injury is made, the employee or his or her attorney shall be furnished, within 15 days of a request, a complete and correct copy of the report of every such physical examination relative to the injury performed by the physician making the examination on behalf of the employer or the carrier. The employee shall have the right to have a physician provided and paid for by himself or herself present at the examination. If he or she refuses to submit himself or herself for the examination, or in any way obstructs the same, his or her right to compensation shall be suspended and his or her compensation during the period of suspension may be forfeited. Any physician who makes or is present at any such examination may be required to testify under oath as to the results thereof. [Emphasis added.]
A
The Court of Appeals relied on the analysis applied by the WCAB in the case of Crunk v General Motors Corp, 1983 WCABO 524. In Crunk, the WCAB held that § 385 of the WDCA and § 1445(1) of the Revised Judicature Act should be read in pari materia because both "statutes contemplate that an injured employee will be required to submit to a medical examination." 174 Mich. App. 316. The Court added:
MCL 600.1445(1); MSA 27A.1445(1) provides:
Whenever in any proceedings before any court, board or commission, or other public body or officer, an order is made by such court, board or commission, or other public body or officer, requiring and commanding that a person shall submit to a physical examination, the order shall also provide that the attorney for such person may be present at such physical examination if the party to such examination desires that an attorney representing him be present.
Also related to this subject matter is § 865 of the WDCA, MCL 418.865; MSA 17.237(865), which authorizes the bureau to appoint an impartial physician to examine an injured employee. Section 865 of the WDCA accomplishes this by direct order, while § 385 of the WDCA accomplishes the functional equivalent of an order by authorizing the WCAB to sanction an employee who fails to appear at a medical examination requested by the employer by suspending and possibly ordering forfeiture of compensation benefits. We can perceive of no meaningful distinction between an order that directly requires a medical examination and one that coerces the employee to submit to an examination requested by the employer with the full force of WCAB sanctions behind the request. [ Id. at 316-317.]
The Court of Appeals cited Crawford Co v Secretary of State, 160 Mich. App. 88, 95; 408 N.W.2d 112 (1987), for the rule that statutes which relate to the same subject matter or share a common purpose should be read in pari materia, even if they contain no reference to one another. However, we reject the contention that § 385 of the WDCA and § 1445(1) of the RJA were intended to relate to the same subject matter or were intended to have a common purpose.
In Palmer v State Land Office Bd, 304 Mich. 628, 636; 8 N.W.2d 664 (1943), this Court identified the necessary factors in order to determine if two statutes should be read in pari materia:
"Statutes in pari materia are those which relate to the same person or thing, or to the same class of persons or things, or which have a common purpose; and although an act may incidentally refer to the same subject as another act, it is not in pari materia if its scope and aim are distinct and unconnected." [ Id., quoting Rathbun v Michigan, 284 Mich. 521, 543; 280 N.W. 35 (1938).]
The RJA is intended "to revise and consolidate the statutes relating to the organization and jurisdiction of the courts of this state; the powers and duties of such courts, and of the judges and other officers thereof" as well as to provide procedures for the courts. The scope of the RJA covers a multitude of issues. Conversely, the scope of the WDCA is very specific; it was enacted to provide a prompt remedy for injured employees through an administrative process. The aim of the WDCA contemplates the avoidance of the judicial process, whereas the aim of the RJA is toward the organization of the court system.
Preamble to the Revised Judicature Act, 1961 PA 236.
We find that the scope and aim of the WDCA and the RJA are distinct and unconnected. The fact that § 385 of the WDCA and § 1445(1) of the RJA each refers to medical examinations is, at best, incidental. This being so, we find that the two statutes should not be read in pari materia.
By so holding, we do not suggest that § 1445(1) may never apply to a workers' compensation proceeding. The specific language of § 1445(1) indicates that it would apply in the face of a medical examination ordered by the bureau pursuant to § 865 of the WDCA. Section 1445(1) focuses on "an order . . . made by such court, board or commission, or other public body or officer. . . ." (Emphasis added.) It is not enough that there is a request for a medical examination in a proceeding before a public body. By the terms of the statute itself, there must be an accompanying "order . . . by such . . . public body or officer. . . ."
MCL 418.865; MSA 17.237(865) provides:
The bureau may appoint a duly qualified impartial physician to examine the injured employee and to report. The fee for this service shall be $5.00 and traveling expenses, but the bureau may allow additional reasonable amounts in extraordinary cases.
In the matter presently before the Court, there is no order from a public body or officer. Here, the medical examination request is a result of the valid exercise of a statutorily created right of the defendants. MCL 418.385; MSA 17.237(385). To apply § 1445(1) to a § 385 examination request would require a strained interpretation of § 1445(1) that is beyond the express language of the statute. Therefore, we find that § 1445(1) is inapplicable to a medical examination request made pursuant to § 385.
Accordingly, we note our disagreement with the rationale that a direct bureau order pursuant to MCL 418.865; MSA 17.237(865) amounts to the "functional equivalent" of a medical examination request under § 385.
Section 385 allows an employer or its carrier to request a medical examination of the employee conducted by a physician "furnished and paid for by the employer or its carrier." Section 865 allows the bureau to appoint an "impartial physician to examine the injured employee and to report." Section 385 empowers defendants to have their own physicians examine plaintiffs, whereas § 865 empowers decisionmakers to conduct separate examinations with the directive that the physicians be neutral. We cannot ignore the fact that the Legislature has provided separate statutes to govern these two distinct scenarios. Therefore, we find that § 385 cannot be treated as the "functional equivalent" of § 865.
B
The defendants argue that the maxim expressio unius est exclusio alterius, the expression of one thing is the exclusion of another, is applicable to the determination of whether § 385 grants an employee the right to have counsel present at a medical examination requested by an employer or its carrier. We agree. While it is true that the maxim is a rule of construction as opposed to a rule of law, "[i]t is a product of `logic and common sense.' It expresses the learning of common experience that when people say one thing they do not mean something else." 2A Sands, Sutherland Statutory Construction (4th ed), § 47.24, p 203. Furthermore, the principle of expressio est unius exclusio alterius is well recognized throughout Michigan jurisprudence. See Alan v Wayne Co, 388 Mich. 210, 253; 200 N.W.2d 628 (1972); Stowers v Wolodzko, 386 Mich. 119, 133; 191 N.W.2d 355 (1971); Taylor v Public Utilities Comm, 217 Mich. 400, 402-403; 186 N.W. 485 (1922).
In Taylor, supra at 402-403, this Court recognized that "[ e] xpressio unius est exclusio alterius has been a long time legal maxim and a safe guide in the construction of statutes marking powers not in accordance with the common law."
When what is expressed in a statute is creative, and not in a proceeding according to the course of the common law, it is exclusive, and the power exists only to the extent plainly granted. Where a statute creates and regulates, and prescribes the mode and names the parties granted right to invoke its provisions that mode must be followed and none other, and such parties only may act. [ Id. at 403.]
2A Sands, supra, § 47.23, p 194 provides in part:
[ Expressio unius est exclusio alterius] is applied to statutory interpretation, where a form of conduct, the manner of its performance and operation, and the persons and things to which it refers are designated, there is an inference that all omissions should be understood as exclusions. "When what is expressed in a statute is creative, and not in a proceeding according to the course of the common law, it is exclusive, and the power exists only to the extent plainly granted. Where a statute creates and regulates, and prescribes the mode and names the parties granted right to invoke its provisions, that mode must be followed and none other, and such parties only may act." The method prescribed in a statute for enforcing the rights provided in it is likewise presumed to be exclusive.
There is no question that the WDCA is a legislative creation which is in derogation of the common law. Tews v C F Hanks Coal Co, 267 Mich. 466, 468; 255 N.W. 227 (1934); Revard v Johns-Manville Sales Corp, 111 Mich. App. 91, 95; 314 N.W.2d 533 (1981), lv den 417 Mich. 854 (1983). "It is arbitrary and where it speaks nothing can be added nor changed by judicial pronouncement." Tews, supra at 468-469. It is the sole prerogative of the Legislature to alter or modify a provision of the WDCA, Derwinski v Eureka Tire Co, 407 Mich. 469, 482; 286 N.W.2d 672 (1979).
This rule [ expressio unius est exclusio alterius] is well recognized in Michigan. . . . It is particularly applicable to the construction of statutes, such as the workers' compensation act, which are in derogation of the common law. [ Revard, supra at 95.]
See also Brown v Eller Outdoor Advertising Co, 139 Mich. App. 7, 13-14; 360 N.W.2d 322 (1984), lv den 424 Mich. 902 (1986). In Brown, the Court reviewed with approval the reasoning of the WCAB when it applied the maxim expressio unius est exclusio alterius to determine that the express mention of weekly compensation benefits in § 801(5) of the WDCA, MCL 418.801(5), MSA 17.237(801)(5), implies the exclusion of other types of benefits.
Section 385 grants an employer or its carrier the authority to have a physician of its choice conduct a medical examination of an employee. The statute is clear and unambiguous in that it permits the employee "the right to have a physician provided and paid for by himself or herself present at the examination." It is equally clear that § 385 does not provide the employee with the right to have counsel present at the examination. The right of the employee is plainly granted within the statute and exists only to the extent plainly granted. Therefore, the mode prescribed within § 385 "must be followed and none other. . . ." Taylor, supra.
In interpreting § 862 of the WDCA, MCL 418.862; MSA 17.237(862), this Court held that when the language used in a statute is clear, the Legislature must have intended the meaning it has plainly expressed, and the statute must be enforced as written. Hiltz v Phil's Quality Market, 417 Mich. 335, 343; 337 N.W.2d 237 (1983).
In Storey v Meijer, Inc, 431 Mich. 368, 376; 429 N.W.2d 169 (1988), we held that when the language of a statute is clear and unambiguous, no further interpretation is necessary.
Our analysis is buttressed by the fundamental rule of construction that every word of a statute should be given meaning and no word should be treated as surplusage or rendered nugatory if at all possible. State Bar v Galloway, 422 Mich. 188, 196; 369 N.W.2d 839 (1985); Baker v General Motors Corp, 409 Mich. 639, 665; 297 N.W.2d 387 (1980); Stowers, supra.
The plaintiff advances the argument that an employee has the right to have counsel present during a § 385 medical examination because the statute does not expressly preclude attorneys. This rationale ignores the obvious fact that the Legislature has expressly prescribed that an employee has the right to have a personal physician present. To extend the right of an employee to include the presence of an attorney merely because the statute does not expressly prohibit counsel would neutralize the effect of the entire § 385 sentence in question and render it nothing more than surplusage. This is a conclusion that may only be reached when we are presented with a strong countervailing legislative implication, and that is not the case here.
If we were to accept this argument, the next question would have to be, "Then why did the Legislature include within § 385 the sentence `[t]he employee shall have the right to have a physician provided and paid for by himself or herself present at the examination?'"
The employee shall have the right to have a physician provided and paid for by himself or herself present at the examination. [MCL 418.385; MSA 17.237(385).]
We note that the plaintiff and the amicus curiae in support of the plaintiff claim that the interpretation of § 385 advanced by the defendants violates art 1, § 13 of the Michigan Constitution, which provides, "[a] suitor in any court of this state has the right to prosecute or defend his suit, either in his own proper person or by an attorney." We disagree. Such an interpretation does not preclude the plaintiff from having an attorney prosecute a suit. It merely means that an employee does not have the right to have an attorney present during an examination conducted pursuant to § 385.
In fact, § 385 specifically provides for the involvement of an employee's attorney. The statute provides that a report of the physical examination made by the defendant's physician shall be furnished to the employee's attorney within fifteen days of a request, and that any physician who makes or is present at any such examination may be required to testify under oath as to its results.
Finally, the plaintiff argues that medical examinations conducted pursuant to § 385 are inherently unfair because "[t]he physicians selected by the carriers for the employers are often the same physicians time after time and are well versed with the Workers' Compensation laws and procedures." However, given the current scheme of the WDCA, we suggest that the appropriate remedy for this concern would be to impeach the credibility of the physician selected by the carrier through cross-examination. Additionally, an attorney would have "ample opportunity to challenge the use made of the information obtained by the examination when the findings are presented as evidence in court." Barnet, Compulsory medical examinations under the federal rules, 41 Va L R 1059, 1074 (1955).
The presence of an attorney during a § 385 medical examination may result in the disqualification of the attorney pursuant to the Michigan Rules of Professional Conduct. "When an attorney observes the examination of his client, he creates the possibility that he may have to impeach the examining physician through his own testimony." McDaniel v Toledo, P W R Co, 97 FRD 525 (1983). Should this situation arise, it would violate MRPC 3.7(a) which provides, "[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness. . . ."
The process and procedure of the WDCA is to be as summary as possible, MCL 418.853; MSA 17.237(853). Section 385 is designed as a factfinding process by which an employer or its carrier can gather medical information relevant to an injury sustained by an employee. The very presence of a lawyer for the examined party injects a partisan character into what should otherwise be an objective inquiry. Warrick v Brode, 46 FRD 427 (1969). Furthermore, we believe that the presence of an attorney at a § 385 examination would tend to promote an adversarial environment even before litigation has begun, thereby defeating the summary nature of workers' compensation proceedings.
Since the enactment of the Workers' Disability Compensation Act of 1969, the Legislature has not exercised its prerogative to alter or modify the language of the statute which provides an employee with the right to have a personal physician present during a physical examination conducted pursuant to § 385. As such, it is beyond the power of this Court to add to the express language of the statute through judicial pronouncement. Tews, supra at 468-469. We find that the maxim expressio est unius exclusio alterius, as well as the fundamental rule of construction that every word in a statute should be given meaning and no word should be treated as surplusage if at all possible, are applicable to the question before us today. Therefore, we determine that the legislative intent of § 385 is to limit the right of an employee to the presence of a personal physician during an examination requested by an employer. Thus, we conclude that § 385 does not grant an employee the right to have counsel present during a physical examination requested by the employer.
2A Sands, supra, § 57.10, p 664 provides, "[w]here a statute grants authority to do a thing and prescribes the manner of doing it, the rule is clear that the provision as to the manner of doing the thing is mandatory, even though the doing of it in the first place is discretionary."
III. CONCLUSION
Section 385 provides a procedure which allows an employer or its carrier to conduct a physical examination of an injured employee. The statute is clear in that it provides an employee with the right to have a personal physician present at the examination. To extend the effect of § 385 beyond the language of the statute would breach the rules of statutory construction, as well as the summary spirit of the WDCA.
We acknowledge that the WDCA should be applied liberally in favor of an injured employee inasmuch as it is remedial in character. 81 Am Jur 2d, Workmen's Compensation, § 28, p 722. However, reasonable limitations should be placed upon the rule of liberal construction so as not to "evade the plain intent or to deny the clear mandate of the statute, nor should the operation of the law be stretched by any extravagant principle of inclusion." Id. at 724. "Where the language used is so plain as to leave no room for construction, the court should not read into the enactment words that are not found therein either by express inclusion or by fair implication." Id., § 29, p 725.
"The courts should recognize limitations on their powers in interpreting statutes. They should recognize that the legislature is supreme and must be followed to the extent that it has passed laws which are clear and constitutional. The courts do not have the right to say: `This is what the statute states, but we do not like it and hence will not follow it.'" [3 Sands, Sutherland Statutory Construction (4th ed), p 821, reprinted from Johnstone, An evaluation of the rules of statutory interpretation, 3 U Kan L R 1, 8 (1954).]
We agree with the lead opinion of the WCAB that the "[d]efendant's ability to defend the case is seriously compromised as to any medical issues [by plaintiff's refusal to submit to the defendant's requested examination], and 385 is very clear that plaintiff shall submit to medical examinations arranged by defendant." (Emphasis in original.)
See n 6.
We hold that an employee does not have the right to have counsel present during a physical examination requested by an employer or its carrier pursuant to § 385. Consequently, we find as moot the second issue regarding the audio recordings of the examination.
Accordingly, we reverse the decision of the Court of Appeals.
In the event that plaintiff submits to the medical examination requested by the defendants, further action would not be barred by the doctrine of res judicata because there has been no decision on the merits of the case. Gose v Monroe Auto Equipment Co, 409 Mich. 147; 294 N.W.2d 165 (1980).
BRICKLEY and GRIFFIN, JJ., concurred with RILEY, C.J.
It would be naive not to recognize the inherently adversarial nature of a physical examination requested by an employer or its carrier under MCL 418.385; MSA 17.237(385). But "[u]nfortunately, the adversarial nature of the setting does not operate to amend the statutory language." (1986 WCABO 43, 46, member Gonzales, concurring.) I therefore concur in the conclusion of the lead opinion that there is no right to have an attorney present at a § 385 physical examination. Where the Legislature has declined to provide the right to an attorney at a § 385 physical examination, such a right may not be created by judicial action, no matter how well justified by the realities of the situation. Simply put, the terms of MCL 600.1445; MSA 27A.1445, granting a right to an attorney at a physical examination ordered by the bureau pursuant to MCL 418.865; MSA 17.237(865), do not apply to the situation at hand. Section 385, which does govern, does not provide the right plaintiff wishes to find therein.
I agree with the WCAB that even if there is no right to have an attorney present at a § 385 examination, a hearing referee may, in his discretion, order an attorney's presence where good cause is shown. The WCAB in this case, holding that no right was granted in § 385, nevertheless held that given circumstances might require an attorney's presence. See also Crunk v General Motors Corp, 1983 WCABO 524, 527-528 (Gillman, Chairman of the Appeal Board, dissenting). It would appear that the bureau is uniquely qualified to judge both the need for relief and the most appropriate means to deal with each situation as it arises within the statutory scheme.
The presence of an attorney at an employer-requested physical examination may be justified and in certain cases may be sorely needed. In Crunk, member Gillman cited, for example, circumstances of "a plaintiff with severe language difficulty; a mentally-deficient plaintiff; . . . a physician with a demonstrated hostility to this plaintiff. . . ." Id., p 528. But this Court is not free to amend the Workers' Disability Compensation Act to square with its own view of good public policy. That is the sole prerogative of the Legislature. Derwinski v Eureka Tire Co, 407 Mich. 469, 482; 286 N.W.2d 672 (1979). I would urge the Legislature to address this question, calling upon the expertise of those who are familiar with the reality of the need for the presence of an attorney at a § 385 physical examination.
I respectfully dissent from the majority's interpretation of § 385 of the Workers' Disability Compensation Act. MCL 418.385; MSA 17.237(385).
I reject the majority's conclusion that its interpretation of the statute is compelled by the rules of construction "the expression of one thing is the exclusion of another" and "no word should be treated as surplusage. . . ." Ante, pp 362, 364. To interpret § 385 as expressing a legislative intent to assure the right to at least a physician's presence violates neither of these maxims. The absence of any reference to the presence of nonphysicians at the examination is ambiguous: The Legislature may have either assumed an employee already had the right to the presence of nonphysicians, or even neglected, failed, or refused to decide whether or not an employee could bring along a nonphysician observer.
It is not unreasonable to conclude that, in enacting § 385 in 1969, the Legislature assumed that the right to an attorney's presence at a physical examination ordered by a public body, provided by then in § 1445(1) of the Revised Judicature Act, MCL 600.1445(1); MSA 27A.1445(1), would apply to the physical examinations specified under § 385. Under § 385, the Legislature itself has essentially ordered employees to submit to examinations requested by their employers. The degree and source of compulsion provided by § 385 is the same as if the examination were preordered by a court or other tribunal in every case.
That the Legislature separately provided in § 865, MCL 418.865; MSA 17.237(865), for the bureau to appoint and pay an "impartial" examining physician does not suggest any legislative decision to deny the employee the right to an attorney's presence at either an examination under § 865 or § 385. Indeed, by holding that an employee may insist upon an attorney's presence at an examination by an impartial physician under § 865, cf., Zawacki v Detroit Harvester Co, 310 Mich. 415; 17 N.W.2d 234 (1945), while prohibiting counsel's presence at an examination by the employer's physician, the majority's interpretation effects an ironic result: The employee's right to an attorney's presence is recognized only when it is least needed.
Nothing in § 385 denies an employee the right to the presence of a person other than a personal physician at the examination, be that person the employee's spouse, an interpreter, a friend of the employee, the employee's attorney or that attorney's representative, or a nurse. More generally, the section does not deny an employee the right to insist that the examination be subject to reasonable conditions; it only prohibits the employee from "refus[ing] to submit" to or "in any way obstruct[ing]" the examination. No record support exists for the underlying assumption of the majority that the presence of this plaintiff's attorney will "in any way obstruct" the examination. Any assumption that he will is pure speculation.
A paralegal or legal assistant may serve the same purpose as an attorney without posing the potential problem noted in n 17 of the majority opinion. Ante, p 366. Still, the existence of the potential conflict says little about the Legislature's intent. After all, the same situation did not dissuade the Legislature from providing for a client's right to an attorney's presence under § 1445(1).
Tostige v Morey's Gulf Country Club, 1972 WCABO 1934 (the plaintiff's refusal to submit to examination was reasonable, the denial of the motion to forfeit benefits was upheld); Rodabaugh v General Motors Corp, 1978 WCABO 2413, 2416 ("the rule of reasonableness" controls the location of an examination).
Finally, the majority's policy explanations for its result are unconvincing. Apparently, in the majority's view, the Legislature guaranteed the employee the right to her physician's presence, but denied her the right to her attorney's presence because it agreed (1) that an attorney's presence in all or most cases would obstruct or lengthen these examinations to a greater degree than a physician's presence would, and (2) that a lawyer's presence would "inject a partisan character into what should otherwise be an objective inquiry." Ante, p 366.
I find no basis for these assessments of legislative intent, nor does the majority provide any. Just as nothing in this record suggests that the presence of this particular employee's attorney will cause her examination to take longer or make her workers' compensation proceedings less "summary," no basis exists to suppose a legislative prediction that delay or obstruction will generally accompany the presence of an attorney at these examinations. The majority's second rationale naively ignores the inherently adversarial nature of these proceedings, and its recognition by the Legislature. If the Legislature had anticipated that these examinations would be nonpartisan or "objective," it need not have provided for either the presence of the employee's physician or a separate examination with an impartial physician under § 865. For these reasons, I cannot agree with the majority's conclusion that allowing an employee to insist on the presence of a nonphysician at an examination under § 385 would violate legislative intent by "defeating the summary nature of workers' compensation proceedings." Ante, p 366. Nor would I agree that the medical examination itself should be "summary." The presence of an observer, like the presence of a physician, might well ensure the salutary effect of a more thorough examination.
The Legislature has conditioned the continued receipt of benefits upon the worker's cooperation with the defendant's doctor's physical examination. The examination clearly forces a surrender of the worker's privacy. The statute's specific allowance of the worker's own physician at the examination must arise only rarely. How many injured workers, living on the very compensation threatened to be forfeited, can afford to pay a physician to attend? If the worker is fortunate to have hospitalization insurance, would such attendance by a personal physician be reimbursable as a necessary expense? I hardly think so! It is for this reason, as well, that I find it unfortunate that the majority today reaches out to find a statutory prohibition against an injured worker's ability to be accompanied by a person the worker chooses during this personal and intrusive, albeit required, experience.
Certainly, if an employer can demonstrate that a particular demand by a particular employee will result, or has resulted, in some obstruction of the examination, relief is available to the employer under § 385. But I am unwilling to attribute to the Legislature an intent to authorize the severe sanction of forfeiture of an employee's right to compensation benefits whenever that employee insists, under § 385, upon the presence of an attorney, a person other than a personal physician, or a tape recorder, at an examination.
The majority opinion of the board in this case asserted that an employee may avoid forfeiture even when insisting upon the presence of a nonphysician at an examination under § 385, but only in exigent circumstances which ordinarily would not be present. While it is not clear whether the majority of this Court would allow an employee even this limited "right" to the presence of an attorney, the construction is unacceptable. It places the burden of proving the absence of obstruction on the employee even though a presumption of obstruction is not present in the statute. See, e.g., Armstead v Lansing School Dist, 1989 WCABO 24, 32 (the defendant has the burden of proving that the plaintiff obstructed the examination); Johns v Michigan Bell Telephone Co, 1979 WCABO 2066, 2078 (forfeiture was inappropriate absent a showing of a pattern of conduct demonstrating an intent to thwart the defendant's examination of the plaintiff).
See also Tri-Met, Inc v Albrecht, 308 Or. 185, 190; 777 P.2d 959 (1989), where the court upheld a referee's finding under a similar statute that the employer had not shown obstruction when the referee stated:
"I do not find much merit in the objections raised by the proposed examiners in this matter. . . . Claimant's attorney has agreed to do nothing more than observe. The examiners' suggestion that an attorney's mere presence would taint the examination is patently absurd and only bolsters concerns over examiner objectivity."
LEVIN and ARCHER, JJ., concurred with CAVANAGH, J.