The team members here at Reck Law, from our claim administrators, attorneys, to general staff, work very hard. The daily fight for the rights of work injury claimants in Washington State requires a lot of hard work and grinding. Therefore, we are humbled and appreciate this feedback, award, and recognition from our clients. Winning the Best Workers’ Compensation Law Firm in Puget Sound refuels and energizes us to continue to do our work. Thank you all very much for this award!
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.
I recently posted an article about L&I’s Medical Aid Rules and Fee Schedules, which were recently published for 2023. In particular, the L&I Medical Aid Rules can be a great resource for helping work injury claimants understand treatment options. Furthermore, the L&I Fee Schedules can also have a significant impact on work injury claimants and stakeholders.
L&I cuts funding for Nurse Case Managers
As a workers’ compensation attorney who regularly publishes on issues relating to workers’ compensation issues in Washington State, I feel I would be remiss if I did not publicly address and unambiguously condemn L&I’s new fee structure for Nurse Case Managers. I am well aware that L&I has a duty to responsibly manage the Accident Fund. However, cutting fees for Nurse Case Managers is not the way to do it.
Last year, Nurse Case Managers were entitled to bill $116.60/hour for their work in L&I claims. This is a very reasonable rate given their level of education and experience requirements. This year, the 2023 L&I Fee Scheduled caps their fees at a flat rate of $200 per month. While I don’t personally have statistics on this, I strongly suspect the $200 flat fee comes nowhere close to adequately compensating Nurse Case Managers for the work they do. I anticipate that these funding cuts will result in experienced Nurse Case Managers declining to provide services in L&I claims. In fact, I’m already starting to see it happen.
What are Nurse Case Managers?
Nurse Case Managers (NCMs) are registered nurses with one of the following case management certifications: Certification of Disability Management Specialists (CDMS), Commission for Case Manager Certification (CCMC or CMC), Certified Rehabilitation Registered Nurse (CRRN), Certified Occupational Health Nurse (COHN), and/or Certified Occupational Health Nurse-Specialist (COHN-S). In other words, NCMs are highly educated and skilled healthcare professionals. An NCM can be assigned to assist in an L&I claim in many situations. For example, when there has been a catastrophic work-related injury not otherwise being managed under the “Catastrophic Project”. Another example is an L&I claim where the work injury claimant lives or has moved out of Washington State and needs assistance locating a provider. Other examples include an L&I claim involving medically complex conditions, or when there are other barriers impacting successful claim resolution.
As an L&I attorney representing work injury claimants, I have partnered effectively with NCMs on countless occasions to achieve results that benefit not only work injury claimants, but also L&I and other stakeholders. This is particularly true in Out-of-State cases, complex or catastrophic medical cases, and cases with other issues creating a barrier to appropriate claim progress.
How are Nurse Claim Managers useful in Out-of-State claims?
NCMs are instrumental in assisting us to obtain Out-of-State treatment providers. Usually, before we request assistance from a NCM, my staff undertakes to assist our clients with this process. However, due to the meager L&I fees for service providers, we are finding it more and more challenging to find willing Out-of-State treatment providers. Furthermore, we often find that despite our best efforts, treatment providers are turned off when a law office contacts them to inquire about providing L&I treatment to a work injury claimant. They usually assume our involvement means the claim is messy or legally contentious. This is often not the case.
Once my office has exhausted our resources trying to get an Out-of-State provider, we ask for an NCM to be assigned. In approximately 4 out of 5 cases, having a NCM assigned results in our ability to track down a willing Out-of-State provider despite our prior failed efforts. When a willing Out-of-State provider cannot be found, we are left with only one option: L&I must bear the expense of having the injured worker regularly travel to Washington State for treatment. Yes, this means L&I is paying for flights or other transportation, hotels, and meals, on regular intervals for work injury claimants to travel to Washington State for treatment. Again, in approximately 4 out of 5 cases, NCM involvement has saved L&I and work injury claimants from the expense and stress of travel to Washington for treatment.
Complex or catastrophic claims
When I say complex or catastrophic claims, I am referring to injuries that result in significant, often irrecoverable, disability. The best example I can give is an injury that results in quadriplegia. Treatment and care for individuals paralyzed by their injuries is incredibly complex. There are so many moving parts from acute treatment to long term treatment. During acute treatment, many families are unsure whether their loved one is even going to survive. Most workers do not have attorneys in these early, but incredibly stressful hours and days. NCM’s can help guide these families to understand the system and make informed decisions.
Families of work injury claimants will bear the load
Once the acute treatment phase has passed, the real work begins. Paralyzed work injury claimants require a team of medical providers resulting in a complex schedule of appointments. Simply managing and getting to appointments is a full-time job. For this, usually a family member must take on the role of a full-time caregiver or a professional caregiver is needed. NCM’s are incredibly skilled in connecting families with the resources they need to determine if they can provide care themselves or need assistance from professionals. A number of other challenges must be addressed as well, including but not limited to: finding appropriate transportation for a paralyzed individual (imagine trying to get a paralyzed individual into a small family sedan), making appropriate home modifications or helping families relocate if needed (imagine trying to bring a paralyzed work injury claimant home to a second floor apartment with no elevator), and obtaining all of the necessary durable medical equipment needed such as wheel chairs, toilet seats, shower accessories, appropriate medical bedding to prevent bed sores, catheters, and the list goes on.
Certainly, if the family elects to hire an attorney, we can help with some of these logistics. Yet, at the end of the day, we are legal professionals. We do not have the knowledge, skill or medical experience to help families with all of the medical logistics needed for a catastrophic injury. I know from personal experience that NCM’s spend countless hours in the early days of claims helping families get everything they need in place. There is no way $200 comes close to compensating NCM’s for the services they provide in this kind of setting.
The role of Nurse Case Managers in L&I claims with other barriers to progress
When I speak of other barriers to progress, I’m generally referring to medical complications that impact claim progress. For example, work injury claimants with underlying health conditions such as diabetes, COPD, pacemakers, thyroid disease, and more may need to coordinate care between specialists and L&I treatment providers before treatment progress can be made. For example, an injured worker with a pacemaker may need clearance from a cardiologist before surgery can be considered. Similarly, work injury clients taking medications for an underlying thyroid disease may now be facing adverse drug interactions for claim related treatments. The list goes on and on.
NCMs are particularly helpful in these situations because they can utilize their medical experience to ensure that appropriate coordinated care is occurring. Another example is when weight loss is needed for treatment progress. For example, medical best practices dictate that people must be under a certain BMI to be eligible for knee replacement surgery. If a work injury claimant needs to lose weight in order to have a particular treatment, then weight loss treatment is covered under the claim. However, only specific methods of weight loss are authorized. NCMs are an invaluable resource in helping work injury claimants find appropriate, authorized weight loss treatment programs, connecting with dieticians, and helping to monitor weight loss progress to ensure it remains on track. Similarly, NCMs are often instrumental in aiding in opioid addiction recovery under the medical treatment guidelines. Again, as attorneys, there are many things we can do to assist work injury claimants with all of these claim related issues. However, at the end of the day, since we are not medical professionals, there are things NCMs can accomplish with more efficiency and experiences than we can.
Cutting funding will have serious negative implications
In summary, claims involving catastrophic work-related injuries not otherwise being managed under the “Catastrophic Project”, work injury claimants that live or have moved out of state and need assistance locating a provider, medically complex condition(s), and or other barriers impacting successful claim resolution are difficult enough as they are. Historically, having access to experienced NCMs has made these challenging claims much more manageable for work injury claimants, their families, attorneys, and L&I alike.
The new fee schedule is going to gut the usefulness of the NCM program. I predict that any savings L&I may see by capping NCM fees at $200 per month will be eclipsed quickly by increased L&I claim costs. I understand the need to avoid excessive hours spent and overbilling, but the 75 hours of service per referral cap already accomplishes that. It is with an unnerving sense of dread for what this will mean for work injury claims that I must unequivocally say: I am incredibly disappointed in L&I. This new Fee Schedule is doing nothing to reduce to a minimum the suffering and economic harm suffered by work injury claimants and their families. In fact, I predict it will do just the opposite.