Washington Legislature Begins 2021 Session: Senate Bill 502
The Washington Legislature started its 2021 session on January 11, 2021 and recently began deliberations on several bills including Senate Bill 5102 which includes numerous troublesome provisions relating to the administration of independent medical examinations, claim file updates/document transmission to the Department of Labor & Industries, and limiting evidence before the Board of Industrial Insurance Appeals.
As proposed in its current form, Senate Bill 5102 includes additional provisions to RCW 51.36.070 such as: limiting employers to one examination prior to filing an appeal with the Board when the issue is claim allowance/denial; one examination for a permanent disability rating when the claim is initially closed or for each time curative treatment is provided after a reopening application; and one examination for a reopening application. The proposed bill goes on to provide that additional examinations can be performed after a final allowance/reopening/PPD evaluation has occurred, but no more than one examination per each new medical issue. The bill would also extend the mandatory mailing notice that self-insured employer must provide from 14 to 28 days prior to the examination. Subsection (1)(d)(ii) would provide injured workers an opportunity to “dispute” an examination and would instruct the Department to adjudicate whether the injured worker should be compelled to attend. Finally, the statute would be amended to allow injured workers a right to record examinations using audio or video equipment and would allow workers to have one “observer” present during the examination. As self-insured employers and claim administrators know, these additional restrictions and procedures for IME’s would significantly hinder the claim administration process.
Senate Bill 5102 would also add a chapter to RCW 51.52 limiting parties to presenting the testimony of one medical expert witness of the same medical specialty, except the attending physician, unless good cause is shown by the presenting party that a second medical specialist is necessary to assist the trier of fact to understand the evidence in proceedings before the Board of Industrial Insurance Appeals. This proposed legislation is a significant restriction on medical testimony during appeals and is especially problematic for the defense of employers in proceedings. The attending physician would be exempt from this limitation meaning claimants’ attorneys would be able to call two providers of the same specialty so-long as one of the providers is the attending physician. The attending physician already always receives “special consideration” in cases before the Board and this would only further aid claimant’s advantage. Clark Cty. v. McManus, 185 Wn.2d 466, 372 P.3d 764 (2016). Moreover, this proposed legislation ignores the fact that many times IME’s are conducted to address different body parts or a claimant’s ability to work at different points in time, which is often why more than specialist is called to testify. While the proposed bill does not outright bar multiple experts of the same specialty from being called to testify, the “good cause” requirement would be a difficult burden and create additional unnecessary litigation costs for employers.
The attorneys at SBH are closely tracking the legislation and have several attorneys on the WSIA Legislative Committee. Please feel free to reach out to me at (503) 595-6105 or your preferred SBH attorney with any questions relating to the proposed legislation or any suggestions for potential amendments.