Independent medical exams (IMEs) provide a valuable second opinion opportunity to review injured workers’ treatment and identify potential misdiagnoses. These exams are often the first time injured workers see a medical doctor instead of physician assistants, nurse practitioners, or chiropractors. The Legislature passed HB 1068, giving injured workers the right to record (video, audio, or both) their private examinations, effective July 23, 2023. Chaos has ensued due to insufficient time for rulemaking and ignoring important input from stakeholders during hearings.
Implementation confusion has resulted due to a lack of time for rulemaking despite Labor and Industries (L&I) requesting to delay the effective day during hearings. Clarifications needed through rulemaking include:
- The management and custody of IMI recordings by L&I
- Whether an injured worker’s recording automatically becomes part of the claim’s file
- A clear definition of the statement “materially alter the recording” is prohibited in the law, etc.
- Does implied consent exist for medical examiners to make their own recordings once they have consented to workers’ requests to record?
Of important note is that L&I is relying on the Office of the Attorney General’s interpretation that no implied consent in the law exists, as passed. This interpretation puts medical examiners in a vulnerable position because the workers’ recording angle and potential undetectable “alterations” could portray a different story about the examination.
There has been an increase in examiners dropping out of the system and delays in injured workers’ treatment progress since the passage of this law. Many examiners have declined such recordings, especially psychiatrists and neuropsychiatrists, because the lack of complete privacy is against their professional ethics.
Any rescheduling due to such recording requests creates a minimum of 4-6 weeks’ delay in workers’ treatment progress. Workers’ attorneys can now create delays in scheduling IMEs that could range from one month to indefinite delays if no IME is scheduled. IMEs are essential for injured workers because these exams often recommend continuation of treatment to the worker’s benefit and can also end stalemates that keep the worker from establishing ongoing pension resolutions.
Despite the unfair position on the part of medical examiners, a law firm has even filed a lawsuit (Ten Injured Workers v. State of Washington) alleging that the law’s prohibition of posting IME recordings online is a violation of First Amendment Rights.
To protect the system’s integrity and injured workers’ benefits, WR is working with the business and IME provider community to collect data regarding adverse impacts on workers resulting from this new law. Injured workers deserve prompt, independent medical exams, while their examiners have the same recording rights as workers.
