By Chris E. Fender, Attorney at Law
Recently, the Washington Department of Labor and Industries introduced a six-month-long third-party recording pilot program for independent medical examinations. Why introduce this pilot program, you ask? To answer that question, let’s start with a quick look at the past two years of independent medical examination legislation and rulemaking to better understand where we are today.
Independent medical examinations are building blocks and lynchpins in Washington workers’ compensation claims, and for decades, the Department of Labor and Industries and self-insured employers have relied upon these qualified medical examiners, who are experts in their fields. Over the years, workers’ representatives voiced displeasure first with regard to the frequency and number of these examinations, and then with respect to their inability to record these same examinations. In 2023, these voices grew loud enough to successfully lobby for the passage in the Washington State Legislature of SHB 1068, which amended RCW 51.36.070 to include a worker’s right to record their IMEs, with very loose parameters. The statute provides workers with the right to record examinations, but provides no right for examiners or employers to do the same. (Even though there are arguments that co-recording is permissible under privacy law, the Department interpreted this provision as precluding examiners from co-recording the worker’s exam, without the worker’s approval and consent.)
Therefore, 2024 was a very turbulent year for employers, claims examiners, defense attorneys, and...
