Washington Court of Appeals: New Insight on Notice and the Authority of DLI Policies
In the State of Washington, employers are required to give notice of a mandatory IME at least 14 to 60 days prior to the examination, and must provide the worker with the date, time, and location of the exam. But is the worker free to miss the exam without penalty if the employer changes the examination from an in-person appointment to a virtual examination after the 14-day notice deadline? Does the Department still have the authority to suspend claimant’s benefits for failure to cooperate, even if to do so would conflict with the Department’s own policies?
The Washington Court of Appeals recently answered these questions with its decision in Novalic v. Peacehealth, No. 58451-4-II (Wash. CT.App. July 16, 2024). In 2020, the self-insured employer, Peacehealth, provided proper notice to claimant 14 days prior to a psychiatric IME. However, due to the developing COVID-19 pandemic, the employer then notified Ms. Novalic three days before the scheduled IME that her examination would be conducted remotely via telehealth rather than in-person.
Ms. Novalic’s attorney objected to the change, arguing that (1) there was not proper notice for changing the exam to telehealth, and (2) that the employer violated a temporary Department policy which required the worker to give consent for a telehealth IME. Ms. Novalic did not appear at the scheduled appointment, and the Department suspended claimant’s benefits due to non-compliance. Claimant appealed.
The Washington Court of Appeals affirmed the department’s decision, finding that proper notice had been given for the IME. According to WAC 296-14-410(3)(a), notice requires the date, time, and location of the examination. However, the Court found that proper statutory notice does not require the employer to include the method by which the exam is to be conducted. Finding that the switch from in-person to a remote telehealth exam was a matter of method, the Court determined that the self-insured employer’s notice remained proper.
Regarding the alleged policy violation, the Court found that the Department cannot create a legal restriction merely by adopting a policy. Unlike statutes and administrative regulations, the Department’s policies do not have the force of law. Furthermore, the Court found that although the policy appeared to require the worker’s consent for a telehealth appointment, the context of the policy suggested that it was specifically related to securing payment to providers rather than addressing the worker’s ability to provide good cause for noncooperation. As such, the Court found that such a violation of the Department’s temporary policy did not restrict the Department’s authority to suspend claimant’s benefits.
This case is important for two primary reasons. First, it establishes that changing an in-person exam to a remote telehealth exam is a matter of method, not location. This means that an employer will not violate statutory notice requirements if the method of an exam is changed after the 14-day notice deadline. However, a substantial caveat should be noted: the IME in this case was a psychiatric evaluation. The court found it compelling that the employer provided declarations from three separate psychiatrists who all stated that they regularly conduct remote appointments via telehealth for psychiatric IMEs as well as appointments in their regular practice. If the IME had required the examiner to inspect a particular body part, the court may determine that the telehealth appointment is not the proper method.
Second, the Court established that the Department’s adopted policies do not carry the force of law. This means that even if an employer or the Department violates a policy in suspending a worker’s benefits, this may not be sufficient for the worker to prevail on a protest or appeal if following the policy contradicts the governing regulations or statues.
If you have any questions regarding these new insights on notice requirements or the impact of Department policies, feel free to contact me at 503-776-5426 or .
Posted by Nathan McFadden.
