December 21, 2020
by Kara Cogswell

New Year, New Restrictions On IMEs in Washington

New Year, New Restrictions On IMEs in Washington

With the new year, comes new restrictions on independent medical examinations in Washington. On January 1, legislative revisions to RCW 51.36.070 take effect which more narrowly define when and how self-insured employers may exercise their authority to require a claimant to attend an independent medical examination. To implement these changes, the Department recently issued two interim IME policies which also take effect January 1.

Changes to RCW 51.36.070 Effective Jan. 1, 2021

The most significant change to RCW 51.36.070 is the addition of new restrictions on when a claimant may be required to attend an IME. Previously, the law permitted the Department/self-insured employer to obtain an IME “in order to resolve any medical issue.”  In the revised statute, “to resolve any medical issues” is replaced by language allowing an IME only when needed to:

  • make a decision regarding claim allowance or reopening;
  • resolve a new medical issue, an appeal, or case progress;
  • or evaluate the worker’s permanent disability or work restriction

Notably, the change from “any medical issue” to “a new medical issue,” seems aimed at preventing “preponderance” IMEs to get a second opinion, particularly when a treating physician disagrees with a prior IME report.

Potentially, an objection from a claimant or a provider to the denial of a condition could constitute an “appeal” as this word is used in the statute, giving another basis to obtain an exam.  It seems unlikely “appeal” would be construed to mean an appeal to the Board of Industrial Insurance Appeals, as the litigation process restricts the employers ability to require a claimant to attend any examination except as permitted by the civil rules (CR 35).

Another significant change to RCW 51.36.070 is a new requirement for the exam to “be at a place reasonable convenient to the injured worker,” which is defined as a “a place where residents in the injured worker’s community would normally travel to seek medical care for the same specialty as the examiner.”  The law further states that alternatively, telemedicine should be utilized “if the Department determines telemedicine is appropriate.” The statute also states that the Department must address through rulemaking how to “accommodate the injured worker if no approved medical examiner in the specialty needed is available.”  Although final rules are pending, this is one of the areas addressed in the Department’s interim policies.

Interim IME Policies Also Effective Jan. 1, 2021

The Department recently issued two interim IME policies which take effect in 2021.  These policies are lengthy and worth reviewing fully. The policy can be found here.

Some highlights:

Interim Policy 13.05: This policy addresses IMEs generally and the Department’s policies regarding the new provisions of RCW 51.36.070.

Unfortunately, the policy offers no clarification as to how the Department will interpret the new provisions of RCW 51.36.070 regarding the circumstances in which an IME may be requested.  The policy simply restates the acceptable reasons listed in the statute.

The policy provides a little more clarification regarding the new requirements for an IME to be scheduled at a location “where residents within the works community would normally travel for similar care.” The policy indicates “community” means county. An example is given that there are limited orthopedic surgeons available in Grays Harbor County, so residents typically travel to Thurston county to see an orthopedic surgeon. Accordingly, per the example, it would be reasonable to schedule an IME in Thurston County for a claimant residing in Aberdeen, which is in Grays Harbor County.

The policy also elaborates on what the self-insured employer should do “if the attending provider declined to refer for a consultation and there is no available approved examiner in a reasonably convenient area.” The policy suggests options including scheduling with the next closest examiner, minimizing travel with multiple appointments and using telemedicine when appropriate.

Unfortunately, this language provides less than clear guidance, and seems to open the door for claimants to insist on an evaluation with a consultant selected by their attending provider if there is no IME provider in their area.

Interim Policy 13.07: The second IME policy addresses when a worker cancels or fails to appear for an independent medical examination. This policy confirms existing Department policy that if a claimant fails to attend an IME, the self-insured employer must send a letter to the claimant or their representative explaining why they did not attend. The policy also confirms a worker must have good cause for not attending an IME.

On a positive note for employers, the policy specifies certain things that will generally not be considered good cause, including failure to arrange for transportation or childcare.  Less positive is the policy’s directive on no-show fees. The policy prohibits a no-show fee if at least five days’ notice is given of the claimant’s intent not to attend the examination – even without good cause. The policy only allows a no-show fee if there is less than five days’ notice and does not have good cause.

Conclusion

With the recent changes in Washington law regarding IMEs, self-insured employers should expect more pushback from claimant’s counsel than ever in 2021, especially on claims where multiple IMEs are needed. Hopefully, the Department will provide more clarity through rulemaking as to the circumstances when an IME may be required.  However, this is an issue that may ultimately need to be decided through litigation.

As this area of Washington workers’ compensation law evolves, SBH attorneys are here to help you navigate the changes. If you have any questions, please contact me at , or another SBH attorney.