According to the injury attorneys with Althauser Rayan Abbarno, injured workers required to participate in a compelled medical exam approved by the Department of Labor and Industries, have the right to make an audio or video recording of the examination for their workers’ compensation case. The new law resembles a common CR35 examination commonly requested by insurance companies in personal injury cases following automobile collisions.

Compelled / Independent Medical Examinations

In the workers’ compensation system, a State Fund or self-insured employer’s claim manager may request that an injured worker submit to a medical examination, often called an independent medical exam (IME), to: (1) determine whether to allow or re-open a claim; (2) resolve a new medical issue, an appeal, or case progress; or (3) evaluate a worker’s permanent disability or work restriction.

The examinations are performed by medical providers approved by the Department of Labor and Industries (Department). The provider must submit written reports of the examination to the worker, the worker’s attending physician, and the person ordering the examination. Generally, information contained in claim files and records of injured workers are confidential and are not subject to public inspection.

New Law Allows Evidence of the Examination

The new law provides that a worker has a right to audio and video record independent medical examinations. No less than seven calendar days before the date of the examination, the worker or worker’s representative must notify the scheduling entity that the examination will be recorded.

The worker is responsible for paying the costs of recording. If requested, the worker must provide a copy of the recording to the Department or self-insured employer within 14 days of the request, but not prior to the issuance of the written report of the examination.

The worker must take reasonable steps to ensure the recording equipment does not interfere with the examination. The worker may not hold the recording equipment while the examination is occurring. The worker may not materially alter the recording, and benefits received as a result of any material alteration to the recording may be subject to repayment of those benefits.

Recordings are considered confidential as provided under the existing confidentiality statute. The worker may not post the recording to social media. The worker has a right to have one person present to observe the examination. The observer must be at least 18 years old and must be unobtrusive and not interfere with the examination. In addition, the third person observer may not be the worker’s legal representative or an employee of the legal representative, or the worker’s attending provider or an employee of the attending provider.

Injury Related Legal Questions and Answers

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