Effective January 1, 2021, legislative revisions to RCW 51.36.070 narrowed the circumstances under which self-insured employers may require a claimant to attend an independent medical examination. In the revised statute, an IME is only allowed 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, a worker shall submit to examination by a physician or physicians selected by the department, with the rendition of a report to the person ordering the examination, the attending physician, and the injured worker.
The Department is now considering two new rule proposals regarding IMEs. The first rule proposal seeks to clarify what a “case progress” IME is, as well as limit the total number of IMEs allowed. The second rule proposal addresses disputes between claimants and self-insured employers regarding scheduled IMEs. The Department is in the process of drafting these rule, neither has reached the formal proposal stage at this point.
First Rule Proposal
This rule proposal would amend WAC 296-20-01002 to define a “case progress” IME as an exam necessary because:
A proper and necessary treatment plan is not in place, or further care appears palliative,
The treatment plan has stalled, or
The treatment plan has been completed without resulting in objective improvement for physical conditions, or clinically meaningful signs of improvement for mental health conditions.
Moreover, the rule proposal would amend WAC 296-23-302 to state that the self-insured employer may only schedule a case progress examination after:
Requesting an explanation from the attending provider regarding (1), (2) and/or (3) from WAC 29620-01002 “case progress” definition, or
Requesting that they refer the injured worker to a consultation with the appropriate specialty(ies) per WAC 296-20-051 within 15 days.
If an attending provider does not provide the requested explanation, the requested referral is not made within 15 days, or the consultation is not completed within 90 days, then a case progress examination can be scheduled. In addition, in the absence of approval from the Department, self-insured employers would be precluded from scheduling case progress IMEs until at least 180 days have passed since a claim allowance order has become final and since receipt of the last case progress examination and, if indicated, authorization of additional treatment of the condition.
The rule proposal would also include the addition of a new section to WAC 296-23 which would substantially limit the total number of IMEs allowed per claim. The self-insured employer would only be allowed:
One examination prior to an order allowing or denying a new claim becomes final and binding, unless authorized by the department,
One examination for an impairment rating, unless the examiner determines a rating was premature and further treatment is authorized,
One examination to adjudicate any reopening application prior to a final order allowing or denying reopening, unless the department authorizes the exam,
One additional impairment rating examination following a claim reopening,
One examination after any new medical issue is contended, and
Additional case progress examinations when indicated.
Second Rule Proposal
A second rule proposal involves the addition of a new section to WAC 296-15 which would require that the claimant be given 28 days of notice prior to an IME. The self-insured employer would be required to submit an IME “coversheet” to the Department within 5 days of scheduling the examination.
In addition, the rule proposal addresses disputes between claimants and self-insured employers regarding scheduled IMEs. The rule would direct the Department to consider the following factors when resolving a dispute:
Information provided by the self-insured employer on a required IME coversheet,
Whether notice of the IME was mailed to the injured worker and the worker’s representative no later than 28 days prior to the IME,
Whether the worker agreed to waive the 28-day notice, and
Whether the IME is necessary and consistent with RCW 51.36.070 and WAC 296-23- 307.
A claimant, their representative, or their attending provider would be allowed to file a written dispute at any time, which the self-insured employer would be required to submit to the Department within five working days of receipt. If the Department determines a dispute received at least 15 calendar days prior to the exam requires further investigation, the self-insured employer may be directed to cancel the exam.
Finally, if a claimant attends a disputed IME and the Department ultimately determines the exam was scheduled in violation of the rules, the IME report would not be considered in the adjudication of the claim.
Both rule proposals would substantially limit the self-insured employer’s freedom to schedule IMEs in order to process a case as needed. It is noteworthy that a portion of the material contained in the rule proposals was included in proposed legislation that ultimately failed earlier this year. The Washington Self-Insurers Association is preparing comments on both new rule proposals.
The attorneys at SBH are closely tracking the Department’s rulemaking activities. If you have any questions, please contact me at (503) 595-6114 or .