The Scope of an IME: What the Physician Is Permitted to Do!
I previously wrote a blog about the independent medical examination (IME) process generally and why an injured worker must attend when requested by the workers’ compensation insurance company. An issue that may arise once an injured worker attends an IME is what follow up studies or testing can the IME physician request subsequent to the IME?
An injured worker who attends an IME is not receiving treatment and a physician-patient relationship is not established. Instead, a physical examination performed during an IME is treated by the Pennsylvania Worker’s Compensation Act (“Act”) as a method of fact finding to determine the extent of an injured worker’s disability for the purposes of determining the right to benefits. In 2003, the Pennsylvania Supreme Court, in Coleman v. WCAB(Indiana Hospital and Phico Services Company), further interpreted the term physical examination to include all reasonable medical procedures and tests necessary to permit a provider to determine the extent of an injured worker’s disability. However, the Court cautioned that this broad interpretation of the term physical examination must be tempered with respect to an injured worker’s right to be free of unwarranted contact by others, as people have a privacy interest in preserving the integrity of their body.
So, the Court looked at the plain language of Section 314(a) of the Act, which allows the employer to request that an injured worker submit to an examination by a physician as selected and paid by the employer, and the Court determined that procedures recommended by a physician during an IME must meet the standard of reasonable and necessary, which is linked to the risk, intrusiveness and scope of the examination. From the injured worker’s perspective, since there is no physician-patient relationship created during an IME, a physician during an IME should not be permitted to perform or request any procedure that involves any risk as there would be no legal recourse against the provider should something go wrong. The Court created a balancing test, based upon what is reasonable, and focusing on the intrusiveness of the procedure. By doing so, a balance is created between the goals of accurately assessing an injured worker’s injuries while at the same time protecting their right to be free from nonconsensual contact.
Diagnostic studies, such as MRI or x-rays are therefore most likely to fall within the definition of physical examination, as would a request that an injured worker attend a functional capacity evaluation (FCE). As long as the employer can show these studies and tests are necessary, involve no more than minimal risk and are not unreasonably intrusive, the injured worker will most likely need to follow through with the suggestions of the IME physician.
Jonathan B. Koutcher, Esquire
Email Jon: Jon@pearsonkoutcherlaw.com