New State Law Impacts Independent Medical Examination (IME) Rules

New Washington Administrative Code (WAC) rules that set guidelines for independent medical examinations (IME) take effect on April 23, 2022. These rules were created and/or updated to support ESSB 6440, passed during the 2019-2020 legislative session. ESSB 6440 was passed unanimously by the legislature in response to abusive IME practices, especially by self-insured employers and their third-party administrators.

ESSB 6440 amended RCW 51.36.070. The new state law sets parameters for when an independent medical examination can be requested. It states that examinations must be scheduled in reasonably convenient locations, and establishes telemedicine as an option for IMEs.

What is an Independent Medical Examination (IME)?

Changes to Washington’s Workers’ Compensation Laws

The new rules, and their highlights, include:

WAC 296-15-440, “Use of independent medical examinations. What will the department consider when resolving a dispute to a scheduled independent medical exam (IME) in a self-insured claim?”

This WAC details what the department needs to receive when an IME is disputed by the injured worker or the injured worker’s legal representative. This WAC now requires:

• A copy of the IME notification/assignment letter must be sent to the worker no later than 28 calendar days prior to the exam. However, this time period may still be waived or shortened if the injured worker consents.
• Self-insured employers must use Form F207-238-000 or a substantially similar document (WAC 296-15-001) when communicating notification of an IME to an injured worker. The use of standardized forms is a matter of trying to enforce equal protection under the law, as well as to facilitate efficient adjudication of disputes that will still arise.
• An injured worker’s dispute should state the specific reason(s) why the worker or provider feels the IME is not appropriate.

 

Reasons Why a Worker or Provider May Feel an IME is Not Appropriate

These reasons may include the following:

• A prior IME has been conducted within the most recent 120 days, and a sufficient explanation for what “case progress” has been made has not yet been requested of the injured worker’s attending provider, or the attending provider was not given fifteen days to respond before the IME was scheduled, as required by Department rule;
• An IME is noticed for a “new medical issue” which is not actually a new medical issue at all.
• There has already been an IME conducted for the purpose of case allowance, case progress, disability rating, or any other such reason as the self-insured employer is now trying to duplicate by stacking IME exams in order to claim that a preponderance of evidence supports the self-insured employer’s position on that issue.

 

New Timeframe for Resolution of IME Disputes

This WAC also establishes timeframes associated with the resolution of IME disputes.
The department will only consider instructing a self-insurer to postpone an independent medical examination if the dispute is received by the department at least 15 calendar days prior to the scheduled date of the exam.

 

How the Department of Labor & Industries Resolves IME Disputes

This WAC also explains how the department will resolve IME disputes.

The department will consider the facts in the IME notification/assignment letter and the facts the worker and/or provider provide to determine if an IME should be canceled.

If a worker attends a disputed IME and, after-the-fact, the department determines the IME was in violation of RCW 51.36.070, the report may not be considered in the administration of the claim.

Keep in mind that pursuant to RCW 51.32.110(2)(b), the Department is not supposed to impose a no-show fee on the injured worker if the injured worker has notified the self-insured employer at least five business days in advance that the injured worker does not intend to attend.

However, pursuant to RCW 51.32.110(2)(a), the injured worker’s benefits can still be suspended if the failure to attend an IME is without good cause. So, a no-show fee can be avoided with advance notice, but benefit suspension cannot be avoided if the self-insured employer had a proper reason for conducting the IME exam and gave sufficient notice to the injured worker and the injured worker simply asserted that they would not attend.

 

WAC 296-15-440 is effective April 23, 2022, for IMEs scheduled after that date.

 

WAC 296-23-302, “Definitions.”

Updated to include a definition of case progress examination.

WAC 296-23-308, “Scheduling case progress examinations.”

Establishes thresholds that must be met in order for a case progress IME to be appropriate:

• Time (120 days from receipt of claim) or last case progress IME.
• Requirements related to consultations and requests of the attending provider.

WAC 296-23-309, “How many examinations may be requested?”

Establishes criteria for the total number of examinations per claim.

WAC 296-23-403, “Independent medical examinations—Department data reporting.”

Explains that the department will regularly provide independent medical examination data.

WAC 296-23-401, “Can the department schedule an examination or order a self-insured employer to schedule an examination after receipt of an appeal to the board of industrial insurance appeals (BIIA)?

• States that the department can reassume following receipt of an appeal and direct a self-insured employer to schedule an IME.
• Copies of the rules can be found at 2114 Adoption (wa.gov) and 2128 Adoption (wa.gov).
• Updates to the Claim Adjudication Guidelines will be available on April 22, 2022.

If you have questions about your L&I claim, the Department of Labor & Industries, and/or IMEs, please call Washington Law Center for a free consultation today.