Can I Record My IME Exam?

May an Injured Worker Audio or Video Record an IME Exam?

Yes. Pursuant to RCW 51.36.070(4), effective in law as of July 23, 2023, an injured worker may audio or video record an IME examination if the worker has given not less than seven calendar days of notice to the Independent Medical Exam scheduling entity.

Additional rules also apply to audio and video recording IME exams in Washington state. These include:

1. That the worker must produce a copy of the recording within 14 days of a request for same so long as the IME examiner has filed a finalized written IME report.

2. The worker is responsible for paying the costs of recording.

3. The worker must take reasonable steps to ensure the recording equipment does not interfere with the IME exam.

4. The worker may not hold the recording equipment while the examination is occurring.

5. The worker may not materially alter the recording. Benefits received as a result of any material alteration are subject to charge of material misrepresentation and criminal or quasi-criminal collection proceedings.

The audio and video recordings made by the worker pursuant to RCW 51.36.070(4) may not be posted to social media pursuant to RCW 51.36.070(4)(g), though this statutory prior restraint on Free Speech and Free Association may eventually be determined unconstitutional and therefore stricken from the law. In any event, the recordings made of IME exams are to be held “confidential” by all other parties pursuant to RCW 51.28.070. Employers or their representatives are to be fined $1,000.00 per breach for making IME examination reports or other claim files and records published to individuals other than the Employer’s duly authorized representatives.

What are Tips for Recording an IME Exam?

Be aware that IME examiners are paid experts conducting examinations in order to provide a legal basis for an employer or the state to contest the injured worker’s injury or occupational disease claims. The IME examiners are aware that recordings may be taken and may try to obstruct the recording themselves. For example, one common tactic is for the IME examiner to attempt to place their own body between the video recorder and the examination process that is taking place. In order to minimize the opportunity for this to take place, the injured worker should politely but clearly indicate that they want all portions of the examination to take place only in full view of the camera. The injured worker should politely and calmly coordinate with the examiner for the best vantage point for the camera. The injured worker should then object to any portion of the examination which does not take place in full view of the camera.

Injured workers are allowed to have an adult witness participate in their IME exam process. The injured worker is not to hold the camera, so a tripod can be utilized instead. Otherwise, the witness can unobtrusively hold the camera.

If you have questions about an upcoming IME examination and your right to audio and/or video record, or regarding tips for best methods of accomplishing high-quality and useful recordings that can then be utilized to your benefit within your L&I claim or court proceedings, please call the experienced workers’ compensation attorneys of Washington Law Center.