Section 12/IME questions from a reader.
Editor’s comment: Here is an interesting exchange for academics on Illinois’ unusual workers’ comp concept of Section 12 exams.
We recently had a claimant demand that he be allowed to have his treating physician attend an IME. In this case, the IME doctor refused and the adjuster was able to convince the claimant to attend without his physician.
If claimant had refused to attend without his physician and the IME doc had refused to see the claimant with his doctor present, would the claimant have grounds not to go?
Essentially, can claimant control who attends his IME?; or
Does the employer have the ultimate say on whether anyone else can attend (case manager, translator, etc)?
To respond, we first look to our Workers’ Compensation Act; please see the language below.
Section 12: Employer May Request Employee Medical Examination
Section 12. An employee entitled to receive disability payments shall be required, if requested by the employer, to submit himself, at the expense of the employer, for examination to a duly qualified medical practitioner or surgeon selected by the employer, at any time and place reasonably convenient for the employee, either within or without the State of Illinois, for the purpose of determining the nature, extent and probable duration of the injury received by the employee, and for the purpose of ascertaining the amount of compensation which may be due the employee from time to time for disability according to the provisions of this Act. An employee may also be required to submit himself for examination by medical experts under subsection (c) of Section 19.
An employer requesting such an examination, of an employee residing within the State of Illinois, shall deliver to the employee with the notice of the time and place of examination sufficient money to defray the necessary expense of travel by the most convenient means to and from the place of examination, and the cost of meals necessary during the trip, and if the examination or travel to and from the place of examination causes any loss of working time on the part of the employee, the employer shall reimburse him for such loss of wages upon the basis of his average daily wage. Such examination shall be made in the presence of a duly qualified medical practitioner or surgeon provided and paid for by the employee, if such employee so desires.
In this fact situation, we are going to bet the employee read the Act. We were amazed to hear an injured worker would want to pay a doctor to attend an IME–most treaters would charge several thousand to travel to, wait for and attend an IME and it would be at the employee’s cost, as the Act says.
Section 12 exams have a very specific legal impact. If the rules above are followed and the employee fails to attend, all benefits currently due can be denied.
To address the bulleted questions above:
1. If the claimant had refused to attend without his physician and the IME doc had refused to see the claimant with his doctor present, would the claimant have grounds not to go?
In our opinion, the answer is yes and the legal impact of the IME would be lost.
2. Essentially, can the claimant control who attends his IME or does the employer have the ultimate say on whether anyone else can attend (case manager, translator, etc)?
In our opinion, the answer is mixed. The employee could pay a physician of his own choosing to attend. If the employer or their choice of IME blocked such attendance, it would stop/end the legal impact of the IME. We would strongly urge the employer or the carrier to tell your IME doctors to know the rules. We also cannot understand why one doctor couldn’t and/or wouldn’t examine a patient in the presence of another licensed doctor. When doctors are being trained as interns that happens all the time. If your IME doc were training an intern or three, it happens. They are being paid a lot of money to conduct the exam and write a report so who cares if another doctor is present when they do so?
3. Does the employer have the ultimate say on whether anyone else can attend (case manager, translator, etc)?
The employer has a say on who can attend but we suggest the actual exam should be IME doctor, observer doctor for wildly wealthy claimants and examinee. Nurse case managers can be present but not in the examination room. If a translator is needed, a professional translator should be used.
As a rule of thumb for everyone to remember—these kinds of issues are best brought to Illinois Arbitrators at the earliest opportunity. You don’t have to wait for a hearing to ask such a simple question. The Arbitrators, when they aren’t busy, are tremendous resources on such issues and will provide guidance to both sides on what they are going to do with IMEs/Section 12 exams if the matter becomes litigated. Ask them early and you will avoid uncertainty later in the process.
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