Washington L&I Updates Guidance on Out-of-State Travel for IMEs
For employers with Washington claims involving individuals who have moved out of state, the pandemic has made it very difficult to obtain independent medical examinations. As travel restrictions ease, new guidance from the Department of Labor & Industries makes it more feasible to set IMEs in Washington for out-of-state claimants.
Earlier this month, the Department of Labor & Industries issued a press release titled “Covid-19 Travel Advisory Lifted.” The press release states that in response to the Gov. Inslee’s decision last month to rescind his November 2020 travel advisor, L&I has updated the section of its “Self-Insurance Coronavirus (Covid-19) Common Questions” addressing IMEs.
Unfortunately, the revised guidance is less than clear. The question posed in the Q&A is: “A worker would like to postpone their IME and/or travel arrangements because of coronavirus. What do I do?”
Oddly, the answer continues to reference the November 13, 2020 travel advisory and still states that IMEs should be cancelled pursuant to the now-rescinded policy. Yet, an example is now provided in which an IME is scheduled requiring travel via airline flight and the claimant requests postponement due to Covid concerns. The answer implies it is permissible for the self-insured to schedule an IME requiring out-of-state travel but also suggests that postponement requests citing Covid concerns should be accommodated.
The Q&A further states that “it is reasonable to postpone an IME, especially if the worker or their household is at high-risk under the criteria provided by the CDC for serious illness from the virus, or when travel to the examination cannot be done safely (such as when an airline flight is needed)” and, “[t]hese situations aren’t considered non-cooperation, nor appropriate for assessing no-show fees.”
The gist of the new guidance seems to be, that while self-insured employers may schedule IMEs requiring out-of-state travel, the Department is very unlikely to issue a non-cooperation order or assess a no-show fee if a claimant refuses to attend and cites coronavirus concerns. However, this is likely to be a very-fact specific inquiry and foreseeably the Department might agree not every postponement request is reasonable, such as where a claimant is fully vaccinated and has no medical restrictions against travel.
Other factors to consider are whether there are any Washington-licensed examiners closer to where the claimant lives (many IME panels have approved providers available throughout the country), and whether the IME could be done via telehealth. Currently, L&I only approves IMEs to be done remotely for mental health and a few other specialties, like dermatology. If the IME is one that requires an in-person exam, and there are no L&I-approved providers in claimant’s area, this should also weigh in favor of travel.
Hopefully, the latest L&I guidance on out-of-state IMEs is just the first update with more clarification to come soon. In the meantime, SBH’s experienced Washington attorneys are here to help you navigate the changes. If you have any questions, please contact me at or 503-595-6113, or another SBH attorney.
Posted by Kara Cogswell.
