Washington’s Department of Labor & Industries Issues Q&A for New IME Rules and Guidelines
The Department of Labor & Industries’ new rules and guidelines for independent medical examinations (IME) went into effect on April 23, 2022. These rules and guidelines follow the legislature’s 2020 passage of RCW 51.36.070, which set out defined reasons why the Department or self-insured employer can schedule an IME. The Department’s new rules and guidelines have created many questions and issues with scheduling and obtaining an IME. In an acknowledgement of the complications and intricacies of their new rules and guidelines, the Department published a Q&A on June 8, 2022.
The Q&A can be found here.
Among the many questions the Department addresses is the how it will handle disputes for scheduled IMEs received less than 15 days before the IME or after the IME has occurred. As WAC 296-15-440(2)(b) states it will consider postponing IMEs if a dispute is received at least15 days before the IME, disputes received less than 15 days before the IME or after the IME will be resolved within 90 days of the dispute. This Q&A also confirms the Department will not reimburse self-insured employers for a late cancellation fee if it does not direct the employer to postpone the IME until after a late cancellation fee is triggered.
The Q&As also emphasizes the importance of IME notice letters. Not only should employers be sure to mail them at least 28 days before the examination (WAC 296-15-440), but it should also be sure to specifically identify the basis of the scheduled IME, including the statute authorizing the examination. If the assignment letter does not cite RCW 51.36.070 and the basis for the examination (e.g., case progress, newly contended condition, etc.), and the worker disputes the IME, the Department can order the employer to cancel/reschedule the IME. The Department appears to be taking a very strict (and some would argue heavy handed) approach to IME disputes and has already directed employers to postpone scheduled IMEs. As such, SBH recommends The Department has provided an IME notice letter employers can either use or use one substantially similar to. This form is available here.
And while this Q&A is a helpful move from the Department, it leaves many issues unanswered. Chief among them is whether it will stand by an earlier pronouncement that records review reports are included within these new rules and guidelines. Many at SBH, myself included, do not believe this is an accurate reading of RCW 51.32.070 and is inconsistent with the Department’s own Claim Adjudication Guidelines’ definition of “examination” to mean “a physical or mental examination by a medical care provider licensed to practice medicine, osteopathy, podiatry, chiropractic, dentistry, or [psychiatry].” (emphasis added). We at SBH are continuing to monitor this specific issue and its impacts on processing claims towards resolution.
The agency did clarify, however, that an addendum report does not “count” as a second IME.
The Department also did not clarify if an IME scheduled at the Department’s direction “counts” toward the number of IMEs allowed under WAC 296-23-309. This new administrative code limits employers to one allowance/denial examination, one impairment rating (unless later determined premature or further treatment needed and is authorized), one reopening application examination, one examination for new medical issues unless authorized by the Department, and case progress examinations and examinations to resolve appeals as set out in WAC 296-23-308 and 296-23-401. The Q&A does open the door for requesting Department authority for additional examinations if it does, in fact, “count” Department-directed IMEs as within the limits of WAC 296-23-309, but otherwise fails to offer concrete guidance.
Further, the Department’s Q&A says it will allow a corrected IME assignment letter if the employer realizes the one it sent was in error in some way (e.g., noticed as a case progress examination rather than to address a newly contended condition, and WAC 296-23-302 only allows case progress examinations for accepted conditions). It is important to note that the Q&A notes this “may” cause new notification deadlines if new questions are sent to the examiner, and the Department has not offered any other guidance on this issue.
This blog is not an exhaustive list or discussion of each question in the Q&A, but seeks to highlight some helpful clarifications the Department issued as well as identify remaining questions and issues employers should be mindful of as they navigate these new rules and guidelines. As time passes and these rules and guidelines are utilized and enforced, I and the rest of the SBH’s attorneys are monitoring the Department’s actions and decisions in order to help employers administer and process claims. It seems likely there will be bumps in the road before the issues and complications these new rules and guidelines create are more easily navigated, and SBH is dedicated to staying ahead of the curve. Please do not hesitate to contact me at or at 503-412-3117 for guidance on these new IME rules and guidelines.
Posted by Christine Olson.
