Why You Should Record 'Independent' Medical Exams

(Read Breanna's Trial News article here.)

Independent Medical Examinations are used by the Department of Labor and Industries routinely in workers’ compensation cases. The law defines an independent medical examination (IME) as an “objective medical-legal examination requested (by L&I or self-insurer) to establish medical findings, opinions, and conclusions about a worker’s physical condition” WAC 296-23-302. As it has been demonstrated throughout the years, these exams are anything but “independent.” Because of this, I will be referring throughout this article to them as Compelled Medical Examinations (CME).

NEW LAW

In July of 2023, RCW 51.36.070(4) became effective in law and allows an injured worker to audio or video record a CME, if the worker has given not less than seven (7) calendar days of notice to the CME scheduling entity. Additional rules under the law include:

The worker must produce a copy of the recording within 14 days of the request for same so long as the CME examiner has filed a finalized written CME report.
The worker is responsible for paying the costs of recording.
The worker must take reasonable steps to ensure the recording equipment does not interfere with the CME.
The worker may not hold the recording equipment while the examination is occurring.
The worker may not materially alter the recording.

When this law became effective, everyone felt the effects, good or bad. The CME providers essentially went on strike, by refusing to be recorded or requiring that they be allowed to co-record the examination, if the injured worker was going to assert their right. There was coercion by the CME panels to get the injured workers to sign off on the “consent forms” to allow the provider to co-record. This, effectively and significantly decreased the amount of CMEs for roughly a year. Due to the requirements, injured workers and their attorneys needed to learn how best to implement this new law and record these exams. Throughout 2024, we began to see more cooperation from CME providers to allow the recordings, which meant it was time to refine these practices.

WHERE ARE WE NOW?

Since we now are in 2025, what better way to start the new year than with an update on where things are with the CME recording law and provide best practices when it comes to implementing it!

As of January 2025, we are seeing a steady increase of CMEs back to where they were before the recording bill was passed. More and more CME providers are allowing recordings, with or without co-recording, and more CME providers are joining the Department’s network of providers to do these examinations. Despite this, we are still seeing a significant decline in psychiatrists who are willing to conduct CMEs, while recorded.

The Department is holding strong in it’s middle-of-the-ground approach, when it comes to the recording bill. I know myself, and many others, have pushed back on the Department to require that these providers conduct the examinations considering it is their job, but the Department is, instead, choosing to allow them to cancel the examinations. This is leading to a new complication that injured workers are needing to combat: CMEs within a reasonable distance of their residence.

Because the Department is not taking a stance on the requirements of these providers needing to do these exams, despite the request to record, I have put together a “best practice” when it comes to asserting their right. Below are tips for when requesting to record that it seems most are taking to ensure the injured workers can record their CMEs.

Once the notice of CME is received, the attorney immediately sends out a letter to the CME panel notifying them that the injured worker will record the examination. Within this letter, it states not only their intent to record, but also whether or not they consent to be co-recorded by the provider/panel.
What seems to be working the best is that the law firm has a recording device that the injured worker can check out. There are cheap ones that work great on Amazon that can be purchased. With these, SD cards are inserted to capture everything and make it easy for transfer of the file. Most of these video cameras can be attached to generic tripods that are also relatively cheap and easy to use.
Before the CME, the injured worker checks out the camera and tripod. During the “check out” process, the injured worker is instructed on how to operate the camera and when to return it to the firm.
Once the CME is over, the attorney is transferring the file from the SD card onto a secure external hard drive for storage. These files are quite large and take up a lot of space on a standard system. Further, an external hard drive tends to be much safer from cyberattacks.

The Department is beginning to implement a Third Party CME Recording Pilot that we should all be seeing soon. They state they are conducting this pilot to see whether offering a secure vendor to perform the co-recording is a solution for the future. They believe it will also help inform any future rulemaking efforts. This has not begun yet, but keep your eyes peeled for when this goes into effect.

Finally, it is important to remember that if the CME is not conducted appropriately, if it is cancelled, many times because of it being recorded, or if the CME provider does something inappropriate, there are channels in which to complain to the L&I and DOH. The two ways to report issues with a CME with L&I is either by 1) Emailing the IME Complaints Inbox at IMEComplaints@lni.wa.gov or 2) If you feel the worker’s civil rights have ben violated via coercion to sign the co-recording consent forms or the like, then you email their Civil Rights Program at civilrights@lni.wa.gov or call them at (855) 682-0778.

To notify the Department of Health about the CME provider, you can file your complaint at HSQAComplaintIntake@doh.wa.gov

We are beginning to see just how important recording these CMEs are. We are seeing these doctors take measurements from 5+ feet away from the injured worker, we are seeing how the injured worker is being treated, and we are hearing what the doctors are saying to or asking of the injured worker. I, personally, have had several videos requested by the Department to review based upon my complaints about the CME exam that was conducted. One being where the doctor told the Department that my client refused the exam, but the video showed that instead the doctor told him to leave for no reason before the exam started. Thankfully, upon review of the video, the Department found that it was not my client’s non-cooperation that lead to the exam not being conducted. Therefore, keep recording these exams out there and keep submitting complaints! I know that it can be tedious to do so, but it’s so important in the grand scheme of it all.