Section 38.174a. Physical and mental examination.

Rule 44a. (1) If the appellant places his or her  mental  or  physical condition in controversy, then the administrative law judge  may order the appellant to submit to a physical or mental examination  by a physician  or other appropriate professional. The order may be entered only on motion  for good cause with notice to the appellant and to all parties.  The order  shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. The order shall provide that the attorney for the appellant may be present at the examination.

(2) If requested by a party against whom an order is entered under  subrule

(1) of this rule, the party causing the examination to be made shall deliver to the requesting person a copy of a detailed written report of the examining physician setting out the findings, including the results of all tests  made, diagnoses,  and   conclusions, together  with  reports  on  all   tests   and examinations pertaining to the same condition, and shall make available  for inspection and examination x-rays, cardiograms, and other diagnostic aids.

(3) After delivery of the report specified in subrule (2) of this rule, the party causing the examination to be made is entitled, on request, to  receive from the party against whom the  order  is  made a similar report of any examination previously or thereafter made pertaining to the same

condition and to a similar inspection of all diagnostic aids. (4) If a person who is examined refuses  to deliver a report,  then the administrative law judge, on motion and notice, may enter an order requiring delivery on terms as are just.  If a physician refuses or fails  to  comply with this rule, then the administrative law judge may order the physician  to appear for a discovery deposition.

(5)  By requesting and obtaining a report on the examination  ordered  under this rule or by taking the deposition of the examiner, the person  examined waives any privilege he or she may have in that  action,  or another action involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine the person as to the same mental or physical condition.

(6)  Subrule (2) of this rule applies to an examination made by agreement of the parties, unless the agreement expressly provides otherwise.

(7)  Subrule (2) of this rule does not preclude discovery of a report of an examining physician or the taking of a deposition of the physician under  any other rule.

History: 1998-2000 AACS.