May an Injured Worker Dispute Attending an IME Exam?

Yes, an injured worker can file a written dispute that an IME examination is not appropriate under applicable IME scheduling rules. The Department of Labor & Industries will investigate and may cancel the exam if a correct dispute is filed greater than 15 days prior to the noticed exam.

Do I Have To Attend An IME Exam?

For injured workers, IME exams are often stressful events. IME physicians weaponized their credentials and take positions against those of the injured worker in trade for princely sums of money paid by defense interests. Self-Insured Employers in particular have often abused the availability of this type of exam in order to build a case against injured worker within Washington workers’ compensation claims (i.e., L&I claims). The worker has no similar amount of resources. 

A given IME examiner may make between $1,000,000 and $2,000,000 per year simply performing IME examinations and giving testimony on a part-time basis. Some IME examiners are more prolific and corrupt than others, but none last very long in the IME business if they don’t willingly and consistently give insurance companies, self-insured employers, third-party administrators and other defense interests exactly the opinions that are being purchased.

Issues With Attending Abusive IME Exam Practices

The Washington State Legislature recognized the ever-growing problem of abusive IME practices and took initial steps to curtail same in workers’ compensation matters during the 2019-2020 legislative session. The Legislature then took further steps during the 2022-2023 session. First, ESSB 6440 amended RCW 51.36.070 to establish new parameters for when IME examinations can be requested; provided that such examinations must be scheduled at reasonably convenient locations for the injured worker; and made telemedicine an option. SHB 1068 then followed providing that injured workers may have an adult companion attend their IME examination and unobtrusively videotape the exam.  Following these enactments, new rules have also been promulgated by the Department of Labor & Industries. These rules bind self-insurer conduct.

An Injured Workers Right To Dispute IME Exam Attendance

Injured workers have a right to dispute that they attend an IME exam. Pursuant to WAC 296-15-440, the Department must consider whether a self-insurer’s written notice of IME properly states the SIE’s “need” for the IME consistent with the “necessary” language within RCW 51.36.070. Pursuant to this same WAC, the Department will consider postponing an IME examination if a worker’s dispute is received by the Department at least 15 days prior to the IME examination. The facts that the employer has provided in the IME notification letter, and the facts supplied by the worker or their attending provider when making their dispute will be used by the Department to determine if the IME exam may proceed. The SIE must provide written notice of the IME examination to both the injured worker and their representative at least 28 calendar days prior to the exam. The Department will issue an order to resolve the injured worker’s dispute in accordance with RCW 51.52.050, meaning that the injured worker can appeal even if the Department finds against the worker. Then, if an IME examination has still been allowed to take place but the injured worker ultimately wins their dispute, the Department will no longer consider the IME exam report while adjudicating the worker’s claim. 

Pursuant to WAC 296-23-309, the number of IME examinations in an injured worker’s claim is limited to one IME examination each at the time of original claim allowance; at the time of rating permanency; at the time of a reopening application; and should any “new medical issue” arise in the claim. RCW 51.08.121 defines a “new medical issue” as one “not covered by a previous medical examination requested by the department or the self-insurer.” 

Have Questions About Attending An IME Exam?

If you believe you should not have to attend an upcoming IME examination for which you have received a written notice, please contact the experienced L&I attorneys of Washington Law Center. We know the rules. We can assist.