New Notice Requirement for Independent Medical Examinations in Washington Effective July 23, 2023.
Substitute House Bill (SHB) 1068 was adopted into law by the legislature effective July 23, 2023. This legislation amends RCW 51.36.070, giving workers the right to record independent medical examinations ordered under that section, RCW 51.32.110 or by the Board of Industrial Insurance Appeals. A worker can record the audio, video, or both during an IME.
To aid in understanding the changes to the IME process, the Department has drafted a Frequently Asked Questions (FAQ) page. This will help workers, employers, and IME providers understand the legislative changes. The FAQ will be updated as necessary and can be easily found on the Department’s webpage.
If the worker would like to record the IME, they must give proper notice. RCW 51.36.070 indicates that the notice of intent to record needs to be sent to the “entity scheduling the examination”. The Department has determined this would be the IME provider, also referred to as the IME examiner, IME panel, and IME firm. As such, the worker or representative must call the scheduled IME provider indicated on the appointment/assignment letter no later than seven days before the date of the examination. If timely notification is not provided, the examination may not be recorded without the approval of the IME provider. Accordingly, if a worker notifies an IME provider less than seven calendar days prior to the examination and the IME provider does not agree to waive the notice requirement, the provider should refer the worker to the Department or self-insurer. The examination cannot be rescheduled, and the Department or self-insured employer should inform the worker they must attend the previously-scheduled examination. The IME will not be rescheduled.
The IME provider may record the examination if there is express consent from the worker. SHB 1068 does not address the IME provider’s ability to record examinations so Washington’s laws requiring consent by two parties for recording applies to an IME provider’s recording. Therefore, if the IME provider would like to record the IME, express consent is required. If the worker declines to give consent, the provider cannot record the IME. Notably, this does not negate the worker’s right to record the IME as long as they have provided the required notice.
To physically record during the examination, the worker does not have to record it themselves. The worker may bring a companion to the IME, and that person can record the examination as long as the recording equipment does not interfere with the examination and the worker may not hold the recording equipment while the examination is occurring.
If the self-insured employer or the Department requests a copy of the recording, it has not been established where and in what format the request should be made. Once the Department establishes the proper format, the FAQ and external webpages will be updated accordingly.
If you have any questions regarding SHB 1068 and the new IME rules, please feel free to contact me at (971) 867-2733 or .
Posted by McKenzie Brooks.
