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New Rights For Injured Workers In Washington State: Recording Independent Medical Exams (IMEs)

Understanding Subsection 4 of RCW 51.36.070

Under the new legislation, injured workers in Washington State now have several important rights when it comes to recording their IME exams:


Subsection 4(a) – Right to Record the IME Exam

 

This grants injured workers the right to record audio/video during their IME exam. This provision aims to provide an opportunity for the injured worker to review and understand the examination later. 

 

Subsection 4(b) – Notice Requirement

 

Before an injured worker can record their exam, the injured worker or their representative must give at least seven calendar days of notice that they intend to do so. This ensures that all parties involved are aware of the recording in advance.

 

Subsection 4(c) – Responsibility for Recording Cost

 

The injured worker is responsible for any costs associated with recording the exam.  

 

Subsection 4(d) – Providing a Copy of the Recording

 

The injured worker must provide a copy of the recorded IME within 14 days of the exam. 

 

Subsection 4(e) – Limitations During the Exam

 

While recording the IME exam, the injured worker must take reasonable steps not to interfere with the examination. Additionally, they are not allowed to hold the recording device in their hand during the exam. 

 

Subsection 4(f) – Preserving Original Exam Recording

 

The injured worker cannot materially alter the audio or video recording. 

 

Subsection 4(g) – Restrictions on Sharing the Recording

 

This prohibits the injured worker from posting the recording to social media. The stated intention behind this provision is to protect the privacy and confidentiality of the IME process. See below for more information on the constitutional challenge Washington Law Center has formally launched in response to this. 

 

Subsection 4(h) – Confidentiality of Recordings

 

Recordings made under this subsection are deemed confidential. 

 

Subsection 4(i) – Accompaniment to the IME

 

Injured workers have the right to bring one adult person with them to the IME. This person cannot be a member of the injured worker’s doctor’s office or attorney’s office. It must be a friend or family member essentially acting as support during the examination. 

 

Injured Worker Impacts and Takeaways

 

The recent developments in Washington State’s workers’ compensation laws regarding the recording of IME exams have both positive and negative implications. So far, Washington Law Center has seen that in response to this some IME physicians have reportedly canceled their exams as it appears the fear of potential wrongdoing has led them to rethink their involvement in the state. Meanwhile some view this as an opportunity for doctors to reform and conduct higher quality exams. Right now, here are what we find to be the impacts and takeaways: 

 

Benefits

 

Transparency: The workers compensation system is intricate and complex but these recordings may help shed light into the IME part of it. 

 

Enhanced Understanding: Injured workers can review the recording later to help gain a better understanding of the examination process and information provided by the IME physician. 

 

Quality Control: If a physician knows they are being recorded they are more likely to give a quality exam. 

 

Concerns

 

Bolstering Physician Recall: One major concern is that if the physician is called to testify about their exam they will be able to recall the details better if they have access to the recording. Usually by the time the physician is called to testify they have done so many other exams in the meantime that the attorney can use that as a means to undercut credibility. By supplying the physician with a tool to refresh their recollection, the physician may appear more credible than they actually are.   

 

Constitutional Challenge to 4G: This subsection prohibits injured workers from posting a recording on social media and while some may see how this could be reasonable, we argue it is an infringement on their constitutional right to communicate with others. In response, Washington Law Center has already launched a constitutional challenge in King County Superior Court. The law suit is known as Ten Injured Workers v. State of Washington. Injured workers should have the right to use social media to crowdsource information or seek insights from others and we aim to protect those rights for them. 

 

As RCW 51.36.070 subsection 4 continues to evolve it is essential for both injured workers and medical professionals to stay informed about their rights and responsibilities during the IME process. If you have any questions do not hesitate to reach out to speak with one of Washington Law Center’s experienced attorneys for answers.


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.

ABOUT THE AUTHOR:

Spencer Parr

Partner
Labor & Industries / Personal Injury Attorney

Spencer Parr is a litigation and trial attorney at Washington Law Center focused primarily in the areas of Labor & Industries claims and injury pension benefits. Before co-founding Washington Law Center, Spencer served in the U.S. Army. He has litigated major issues in the law, represented clients from coast to coast, and dedicated his professional life to assisting the injured and disabled. Click here to learn more about Spencer. View More Labor & Industries and Work Injury Resources.

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