Category: IME (Page 1 of 5)

Can I record my independent medical exam (IME)? Yes!

Work injury claimants must attend independent medical exams (IME) during their L&I claim. Historically, the Department of Labor and Industries (L&I) didn’t allow workers to record independent medical examinations.

The fight to allow video recording in IME exams

Many workers’ compensation attorneys opposed the status quo. After monumental efforts and in collaboration with the Washington State Association for Justice (WSAJ), the rules changed. Recently, the legislator enacted RCW 51.36.070. Now, starting July 23, 2023, injured workers may record their IME exam using video and/or audio recordings. However, to take advantage of this new rule, work injury claimants must follow proper procedures.

How to video-record an IME exam under my L&I claim

To comply with the new rule, to record your IME exam, you must take the following steps:

Notify the IME provider – Workers or their legal representatives must notify the IME provider that they plan to record the exam. You must notify the provider at least seven (7) calendar days BEFORE the IME examination.
Pay recording costs – It is your responsibility to pay all recording costs. Furthermore, these costs are not reimbursable.
Hold recording equipment – The work injury claimant cannot hold the recording equipment during the examination.
Do not interfere – The recording and the equipment cannot interfere with the examination.
Provide a copy – If L&I or the self-insured employer asks for it, you must provide a cop of the recording within 14 days of the request.
Can’t edit – – you must not edit or alter the content of the recording in any way!
Don’t post on social media – Work injury claimants and/or their legal representatives may not post the recording or any portion of the recording on social media.

Can I bring an observer to an IME exam?

Absolutely! As before, you can bring someone with you to observe your physical IME exam. If you follow the procedures, the observer can take the recording for you. However, there are a few rules that apply to observers. These are not new rules. They include:

Observers must be at least 18 years old;
The observer cannot interfere with the independent medical exam;
The work injury claimant’s representative (e.g., an attorney, or their employee) cannot be the observer; and
Your attending provider or their employees also cannot be an observer.

An important step that benefits injured workers

As an attorney representing work injury claimants, I find RCW 51.36.070 very exciting. More than anything, the ability to record video and audio in IME exams will give workers greater peace of mind that the exam will be professional and thorough. In recent months I’ve heard all kinds of unbelievable complaints about IME tests. Common complaints include uncomfortable and inappropriate touching and closeness. Other issues are filthy and cluttered examination spaces. I even heard about IME exams where examiners give telephonic testimony while performing the exam.

I expect such issues to occur less frequently if workers can record IME exam. While I’m optimistic about this new rule, there are still several challenges we’ll need to work through as it takes effect.

Challenges with the new regulation to record IME exams

RCW 51.36.070 is still a very new law. We have not had much opportunity to see how recording video/audio during IME exams will play out. Furthermore, some of the language in the statute is not as clear as I’d like it to be. For example, the rule states that workers must give the IME provider notice at least 7 calendar days before the exam. Yet, the rule doesn’t specify how to give notice. As an attorney, it’s important for me to give notices in writing with some way to verify receipt. That way, if a disagreement ever arises over the notice, we can prove the worker gave the notice in time. Usually, the easiest way to do this is via fax because it produces a receipt. However, many IME providers refuse to provide a fax number. Another option is certified mail. However, this is time consuming and expensive.

Another logistical matter is the recording files. Legal representatives and work injury claimants are going to have to maintain these very large files. That is, without altering them in any way. Additionally, they will have to find ways to safely and confidentially transmit recording files to L&I and self-insured employers. Finally, it seems that various entities are fighting and questioning the new rule. The Courts will have to evaluate the statute itself to determine if it’s appropriate. For example, whether it is constitutional.

Summary – Can I record my IME exam?

Yes! Work injury claimants have the right to video/audio record IME exams so long as they follow proper procedures. Still, there are some kinks to work out as this new law takes effect. However, I hope that having the ability to video-record IME examinations will give work injury claimants confidence that they’ll receive fair exams.

The L&I Claim Process: Overview of Common Medical Steps

/ L&I attorney / 0 Comments

Every L&I claim is different. The conditions and circumstances of each workers’ compensation claim are unique. However, many L&I claim cases follow a similar process.

A common process and pattern in L&I claims

Most L&I claims that come across my desk follow the same pattern. More explicitly, the pattern consists of the following steps:

1. A doctors diagnoses the injury as sprain or strain

2. The attending provider prescribes physical therapy

3. Doctors perform clinical exams

4. Medical providers proceed with diagnosis studies

5. L&I subscribes the worker to a pain management program

6. Doctors identify more complex diagnosis

7. L&I sends the worker to an independent medical exam (IME)

8. L&I closes the claim because of pre-existing conditions.

Too many claims follow this L&I claim process, blindly. Many workers fall in a gray area. They do not receive what they deserve under the law. The purpose of this article is to explain the L&I claim process and the steps above. Hopefully, workers can figure out where they stand in the process and decide what to do next.

Work injury happens

A worker suffers an injury on the job. Usually, the injury isn’t visible. However, there’s no question that the worker is in pain. Sometimes, the worker goes to the emergency room (ER) or urgent care right away. Other times, they wait several days. Most commonly, workers hope that the problem will go away on its own.

Sprain or strain diagnosis

The first step in the L&I claim process is when the worker first sees a doctor for the work injury. Usually, the doctor diagnoses the worker with a sprain or strain. A sprain or a strain is a soft tissue injury. It includes muscle injury and injury of the tendons. The treatment for sprain or strain diagnosis typically includes:

Rest
Modification of daily activities
Over the counter anti-inflammatory medication for pain

Sometimes, a doctor orders an x-ray of the affected body part. An x-ray can help determine the diagnosis. On top, it can rule out a fracture. If there’s no fracture, then doctors expect sprains and strains to resolve quickly. Typically, with minimal treatment.

Physical therapy

On occasion, the worker continues to complain about pain. In actuality, there’s no real medical improvement. Then, doctors typically prescribe physical therapy. Some attending providers also call for more diagnostics, such as an MRI. Yet, in my experience, L&I denies MRI exams early in the workers’ compensation claim process. Normally, L&I wants workers to at least attempt physical therapy.

However, many times pain complaints continue. Moreover, physical therapy doesn’t always improve the worker’s pain. That’s when things can start getting messy in your L&I claim process.

What happens in my L&I claim if physical therapy doesn’t help

Say that rest, activity modification, pain medication and physical therapy are not helpful. Next, doctors usually look for signs of more serious problems. Here, doctors may perform certain clinical exam and tests. It all depends on the body part and suspected condition. L&I considers these exam results to be objective medical evidence. For example, say the work injury claimant has persistent low back pain. Then, doctors may perform a straight leg raise exam. This exam checks for potential radiculopathy or nerve impingement.

Additionally, there are other tests that we call “provocative tests”. They help doctors determine more complex workplace injuries. Examples of such complex injuries include:

a) Elbow, wrist, or shoulder impingement

b) Knee and shoulder tear

c) Other spinal disc herniation or displacement

If provocative tests suggest a medical problem, then doctors order more diagnostic studies. Frequently, they include imaging studies. For example, MRI tests and CT scans. Also, doctors often order nerve conduction studies like EMG.

Pain management program (SIMP) and work conditioning

In an L&I claim, the Department of Labor and Industries (L&I) considers pain complaints as subjective. In contrast, diagnostic results are objective. However, objective diagnostics may not explain subjective symptoms and complaints. In such instances, L&I can refer the work injury claimant to an L&I pain management program like SIMP. Or, to a work conditioning or work hardening program. Typically, this is the final treatment attempt before claim closure.

A serious diagnosis & causation

Alternatively, a diagnostic study may objectively find more serious problems. If that’s the case, then causation is going to be the next issue in your L&I claim. There are several serious conditions that doctors often detect through MRI, CT scan or EMG. The list of serious problems we see in L&I claims at our office includes:

1) Disc herniation

2) Spondylosis

3) Spondylolisthesis

4) Facet arthropathy

5) Spinal cord impingement

6) Disc degeneration

7) Bone spurs

8) Meniscus tears

9) Rotator cuff tears

10) Shoulder joint arthritis

11) Knee joint osteoarthritis

12) Loss of cartilage

13) Cubital tunnel syndrome

14) Carpal tunnel syndrome

15) Lateral epicondylitis, and

16) Brachial plexus impingement

to name a few.

From L&I’s standpoint, these diagnoses are challenging. That’s because their cause is rarely a single trauma or injury. Therefore, when a provider identifies the diagnosis, L&I immediately starts questioning causation. At times, L&I asks the attending provider for an opinion about causation. But, very often, L&I calls for an independent medical exam (IME) instead.

Independent medical exam

Most IME doctors find that these kinds of diagnoses do not relate to your L&I claim. There are exceptions, but they are rare. The opinions of IME doctors usually read something like this:

“Diagnosis is pre-existing and unrelated to the industrial injury for which this claim was filed.”

The reason is that most of these conditions have other causes. They include:

a) Natural aging

b) Genetics

c) Gender

d) Weight

e) Diabetes

f) Alcohol use

g) Use of tobacco.

In short, it’s easy for IME doctors to blame the cause on reasons that do not relate to the L&I claim. Unfortunately, in my opinion, IME doctors err and attribute causes to pre-existing conditions too often.

Pre-existing conditions and IME reports

Personally, I take issue with these IME opinions. They completely ignore the laws on pre-existing conditions. Legally, there can be more than one cause for a medical condition. An industrial injury may aggravate or worsen a pre-existing condition. It doesn’t matter whether the pre-existing condition was symptomatic before the work injury. If the work injury causes worsening, then the condition is causally related under the L&I claim. Yet, IME doctors rarely include this in their analysis. They just indicate that a condition is pre-existing. Thus, according to IME doctors, it’s unrelated to the L&I claim.

Segregation order

Eventually, L&I receives the IME report. In turn, L&I will likely issue an order stating it isn’t responsible for the condition. We call this a “segregation order”. Meaning, L&I has segregated the condition from the workers comp claim.

If you receive a segregation order, it’s a good idea to consult with an L&I attorney. Disagreements over causation are one of the most common issues in L&I claims. You have to appeal this decision to the Board of Industrial Insurance Appeals for resolution. Most likely, you’ll want an attorney by your side for the appeal.

Pre-Existing Conditions in Workers Compensation: What Will Happen to My L&I Claim?

/ L&I attorney / 1 Comment

Pre-existing conditions can be a big concern for work injury claimants. Many workers worry that pre-existing conditions will prevent them from getting L&I benefits. This is a reasonable concern. After all, pre-existing conditions can complicate your L&I claim.

What are pre-existing conditions in workers’ compensation claims?

A pre-existing condition is a condition that a worker already has, before a work injury or occupational disease. Furthermore, it can be a physical condition or a mental condition. There are many types of pre-existing conditions. For example, common pre-existing conditions include:

1) A congenital condition that existed since birth

2) Accidents or injuries during childhood or adolescence

3) Past injuries that happened outside of work

4) Many conditions that arise from the natural aging process.

Work injury and pre-existing conditions

The Department of Labor and Industries (L&I) oversees workers’ compensation claims in Washington State. After a work injury, L&I sometimes uses pre-existing conditions to deny medical coverage. However, Washington State law provides protection for work injury claimants. In fact, certain sections of the law specifically address pre-existing conditions after a work injury. Under the law, the workman’s comp legal system protects workers with pre-existing conditions in two ways:

a) Disability: L&I must consider pre-existing conditions when they evaluate your overall disability; and

b) Aggravation: Sometimes, a work injury or occupational disease aggravates pre-existing conditions. In such cases, L&I must take responsibility for aggravated pre-existing conditions.

We take the work injury claimant as we find them

When a work injury happens, L&I must accept injured workers as they are. Funnily enough, there’s a saying among worker’s compensation professionals: “We take the injured worker as we find them”. This phrase can be a bit confusing. Let’s explain what it means.

When claim managers handle an L&I claim, they must evaluate the long-term impact of the industrial injury. During their analysis, L&I has to consider the worker as a whole person. In other words, future-looking analysis and disability evaluation must include pre-existing conditions. In fact, L&I’s analysis may combine pre-existing conditions with new ones that arise from the work injury. This is a requirement under the Industrial Insurance Act in Washington State.

To simplify things, let’s review some examples. After a workplace injury, say that new medical conditions do not show total disability. However, if you combine pre-existing conditions with the new ones, then together they result in temporary total disability. Hence, the law entitles the worker to temporary or total disability benefits. Another name for this L&I benefit is time-loss compensation. In workers’ compensation, we call this “combined effects” of pre-existing and claim-related conditions.

Aggravated pre-existing conditions in an L&I claim

Another important aspect of L&I claims is aggravation of pre-existing conditions. Here, a work injury can activate or aggravate pre-existing conditions. Consequently, L&I must take responsibility for these pre-existing conditions. But, before going over the details, let’s first talk about symptomatic vs asymptomatic conditions.

At the time of the work injury, a certain medical condition may be symptomatic or asymptomatic. A symptomatic condition refers to one that produces symptoms. Also, a condition is symptomatic if it’s disabling or needs treatment. Symptomatic conditions can be a combination of all three of these effects. Or, a condition is asymptomatic if there are no symptoms. In other words, if it’s not disabling and the person doesn’t need treatment.

A workplace injury may “light up” or activate a pre-existing asymptomatic condition. In such cases, L&I must provide coverage for the pre-existing condition. Similarly, a work accident can worsen or aggravate pre-existing symptomatic conditions. For those, L&I needs to cover the conditions under the L&I claim. In addition, the law acknowledges there may be more than one cause for a condition. Similarly, more than one cause can activate or aggravate pre-existing conditions. However, for L&I coverage, it’s enough to show that the work injury is one of the causes.

How to take advantage of pre-existing condition legal protections

Many people have pre-existing conditions before they suffer a work injury. If you are one, then it’s important to follow the 2 recommendations below:

i) Admit that you have pre-existing conditions (if you know of them); and

ii) Describe your conditions and any symptoms caused by the industrial injury. Here, you must explain how the new symptoms are different than before.

These steps can be very confusing. Let’s talk about them in greater length below.

Disclosing pre-existing conditions after a work injury

You cannot hide pre-existing conditions. It never works. Don’t waste your time trying. If you try, it’ll create bigger problems later in your L&I claim. So, it’s very important to be open and honest. Tell your L&I doctor about your pre-existing conditions. If your conditions were symptomatic before the work accident, then let your doctor know. Also, if you didn’t have symptoms before the work injury, then tell your doctor. It’s important for the doctor to know everything from the start.

Sometimes, L&I may ask for a list of providers that have treated you for the conditions. If they ask for the list, then you must give it to them. The list and your treatment history will assist L&I and your treating providers. With it, they can determine if your pre-existing conditions impact your workplace injury and how. Also, it’ll be easier to consider pre-existing conditions when the decide your L&I benefits.

Pre-existing conditions before and after the work injury

Let’s say you have symptomatic or disabling pre-existing conditions. Here, it’s very important to describe your conditions as they were before the injury. Next, it’s equally important to explain how they changed because of the work injury. You must describe the conditions accurately and in detail.

Personally, I often recommend my clients to practice describing the conditions with family and friends. On top, I recommend writing down everything you remember about the condition before and after. Finally, think if your friends or family members saw your symptoms. If so, have them write down what they saw prior to the injury. Also, ask them to document what they observed after the workplace injury.

What happens if L&I doesn’t cover pre-existing conditions?

For some, a work injury doesn’t impact pre-existing conditions. In such instances, L&I won’t take responsibility and won’t provide coverage. For example, let’s imagine you have pre-existing migraines. Your industrial injury doesn’t activate or make them worse. Thus, L&I won’t take responsibility for your migraines. Furthermore, the migraines weren’t activated or aggravated. Therefore, there’s probably no legal action you need take if L&I denies benefits for these migraines.

However, L&I does need to consider the “combined effects” when assessing your total disability. They must consider your migraines together with your L&I claim conditions. Unfortunately, L&I sometime ignores pre-existing conditions when performing total disability evaluations. This is a red flag. If this happens, it’s important to speak with a workers’ compensation attorney or L&I attorney.

Secondly, L&I may deny pre-existing conditions when they think they’re congenital. Other times, L&I will blame certain conditions on aging. Most commonly, we see this happening with degenerative conditions. Many medical diagnostic tests show arthritis and neuropathy. Other exams reveal muscle and cartilage tears. Sadly, L&I often concludes that these conditions are not related early in the L&I claim process, without proper diagnostics.

IME exams and pre-existing conditions

Almost always, L&I will schedule an Independent Medical Examination (IME). Unfortunately, I can tell you the IME outcome ahead of time. Most likely, the IME exam will say that: (1) The pre-existing conditions weren’t caused by the work injury; and that (2) they were not activated or aggravated by the workplace accident.

When this happens, you must provide L&I with a different medical opinion. For that, it’s best to have an attending provider (AP) who’s a strong advocate. Your L&I attending provider can (and should) review the IME report. The attending physician may also provide a non-concurring opinion to L&I on their own. However, not every work injury claimant has a caring attending provider. If you don’t have one, it might be best to call a workers’ compensation attorney. Many good L&I lawyers can help address this issue.

Summary and final comments

To summarize, pre-existing conditions can complicate workers’ compensation claims. Yet, work injury claimants don’t need to worry if they have pre-existing conditions. The law in Washington State provides many protections. Workers can take very simple steps to take full advantage of these protections. On occasion, pre-existing conditions may cause problems in L&I claims. When those arise, it’s important to consult with a workers’ compensation attorney.