Recent Changes to the Laws Concerning Compelled Medical Examinations in Workers’ Compensation Claims

In recent years there have been major changes to the laws governing when the Department of Labor and Industries and self-insured employers can force an injured worker to attend a medical or psychiatric examination and what rights the worker has at such an examination (examinations that the Department calls Independent Medical Examinations or IMEs).

Restrictions on Scheduling Exams

The first change occurred in 2020 when ESSB 6640 was passed by the legislature and signed into law by the governor.  The most important change made by this bill was that it set limitations on when a worker can be required to attend an examination.  Under the new law, exams can only be ordered to 1) make a decision regarding claim allowance or reopening, 2) resolve a new medical issue, an appeal, or for case progress, or 3) evaluate the worker’s permanent disability or work restrictions.

The biggest potential loophole in these limitations was the allowance of exams for “case progress.”  There have, however, been strict rules for such exams set out in the administrative code (WAC).  These rules, set-out in WAC 296-23-308, provide that, unless requested by the attending provider, no case progress exam can be scheduled until 120 days have passed since the later of when the claim was received or the last case progress exam was received and additional treatment of the condition, if requested has been authorized.

Before scheduling a case progress exam, the Department or self-insured must request an explanation from the attending provider regarding the status of the treatment plan or request that the attending provider refer the worker for a consultation with a specialist within 15 days of the request.  The exam can only be scheduled if the attending provider does not respond to the request within 15 business days or the consultation cannot be completed within 90 days, if the provider omitted requested information, or did not have further proper and necessary treatment recommendations.

WAC 296-23-309, implemented pursuant to ESSB 6640, also provides limits on the number of exams that can be ordered.  Only one exam can be done prior to the issuance of an order allowing or denying a claim.  Only one rating exam, by all appropriate specialists, can be performed unless a prior exam determined that a rating was premature.  Only one exam can be performed prior to a decision on whether or not to reopen a claim.  Finally, only one exam can be performed to address a newly contended medical issue.

ESSB 6640 also provided that exams must be at a place reasonably convenient to the injured worker or must be done by telemedicine.  A place reasonably convenient is defined as a place where residents in the worker’s community would normally travel to seek medical care for the same specialty as the examiner.

Recording and Observers at Exams

The second law to change the rules for these exams was SHB 1068, which passed in 2023 and became effective on July 23, 2023.  This law did two main things: 1) it allowed workers to record examinations; and 2) it allowed workers to bring an observer to all exams.  There are, however, rules for both.

While workers have the right to audio or video record exams, they may do so only if they provide notice to the entity scheduling the exam (interpreted by the Department as the IME panel company), at least seven calendar days before the date of the exam.  The worker is responsible for covering any cost of the recording and must, if requested, provide a copy of the recording to the Department or self-insured within fourteen days of the request, but no sooner than the issuance of the written exam report. The recording may not interfere with the exam and the worker cannot hold the recording equipment themselves.  The worker also may not alter the recording or post it on social media.

The worker also has the right to have one person of their choosing present during the exam.  That person must be at least eighteen years old, cannot be an employee of their attorney’s office nor an employee of their attending provider’s office.  The observer also cannot obstruct the exam.

Impact of the 2023 Law

The early impact of the 2023 law has been drastic.  Many exams have been canceled as soon as the panel company is notified that the worker plans to record.  Other panel companies are stating that they will only do the exam if they are allowed to “co-record.”  If the worker refuses to allow this, as is their right, the exam is usually canceled.

There are good reasons for workers to refuse to allow “co-recording.”  First, allowing “co-recording” would mean that someone other than the doctor or the worker’s chosen observer would be in the room watching the exam.  This is a violation of the worker’s privacy.  Furthermore, there are no protections concerning what the panel company can do with the recording.  There are no prohibitions on the panel company altering the recording or even posting it on social media or otherwise publishing it.  The Department has agreed that the panel companies have no right to these “co-recordings,” so workers can simply refuse to allow it.

The upside to most of these exams being canceled is that the Department has begun to rely more on the opinions of treating providers.  This is a much better result for injured workers.

The laws and rules surrounding compelled medical examinations are complicated.  If you have questions about these rules or anything else concerning your claim, feel free to call us at 253-472-2400 to talk with one of our attorneys.

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