Last year, the Washington State Legislature passed Engrossed Substitute Senate Bill 6440 (ESSB 6440) concerning independent medical evaluations (IME’s) for industrial insurance claims, the provisions of which became effective as of January 1, 2021.
The Department of Labor and Industries has adopted Interim Policies 13.05 and 13.07 in compliance with the new legislation. The provisions are as follows:
- An IME can only be requested for specific reasons:
- Claim allowance
- Reopening
- New medical issue
- Appeal
- Case progress
- Permanent partial disability
- Work restrictions
- The IME must be scheduled in a time and place reasonably convenient to the injured worker.
- Out of state IME’s must be scheduled with L&I approved examiners.
- Adjudicators may require a worker living in another country return to the United States for an IME.
- Written notice of the IME appointment must be provided to both the worker and the worker’s representative.
- Reasonable accommodation will be provided to the injured worker in accordance with applicable federal and state civil rights laws to ensure equal access for any person with a disability due to a work injury, pre-existing condition, or other health condition.
- Meaningful access will be provided to injured workers with limited English proficiency by offering language access services at no cost.
- A copy of the IME report must be provided to the attending physician, the worker, and the worker’s representative.
- A no show fee may not be assessed against an injured worker if the worker or their representative gives at least five business days’ notice of the worker’s intent not to attend the IME.
- A worker must have good cause for not attending an IME.
Reasons for good cause include:
- Notice of the examination was not sent to both the worker and the worker’s representative 14 days prior to the scheduled appointment.
- The worker has not been examined or evaluated and leaves after waiting more than one hour after the scheduled time.
- The examiner cancels or is unavailable for an exam. If the examiner cancels because the worker is more than 30 minutes late, this will not be considered good cause for not attending the exam.
NOTE: Other situations may arise where the adjudicator must decide if the worker has good cause for missing the IME. Adjudicators should consider whether the worker experienced an unforeseen or unavoidable event preventing attendance. Failure to arrange dependent care or transportation generally will not be considered good cause.
Puget Sound Workers’ Compensation Trust is already substantially compliant with the provisions of ESSB 6440 and Interim Policies 13.05 and 13.07.
ESSB 6440 also established a work group to:
- Develop strategies for reducing the number of IME’s per claim while considering claim duration and medical complexity and for improving access to medical records and reports created during the exam;
- Consider whether L&I should do all the scheduling of IME’s;
- Decide the circumstances for which independent medical examiners should be randomly selected or specified, as well attendance, specialist consultations, recordings, distance, and location of exams;
- Recommend changes to improve the efficiency of the IME process; and
- Identify barriers to increasing the supply of in-state physicians willing to do IME’s.
The work group consists of members from the state House of Representatives, the Senate, both self-insured and State Fund-covered employers, labor, IME providers, and worker attorneys. We can expect additional legislative changes and provisions based on the work group recommendations to be finalized sometime this year.
The final report and recommendations of the work group can be found here: https://www.lni.wa.gov/agency/_docs/2020essb6440imelegreport.pdf
The Trust will update all member districts as these changes are implemented.
Bob Duncan, Director of Claims Administration
