Or. Admin. Code § 436-010-0265

Current through Register Vol. 63, No. 11, November 1, 2024

Section 436-010-0265 - Independent Medical Exams (IMEs) and Worker Requested Medical Exams (WRMEs)

(1)General.

(a) An independent medical exam (IME) means any medical exam (including a physical capacity or work capacity evaluation or consultation that includes an exam) that is requested by the insurer under ORS 656.325, except as provided in section (13) of this rule. A worker requested medical exam (WRME) is an exam available to a worker under ORS 656.325. An IME or WRME is completed by a medical service provider other than the worker's attending physician or authorized nurse practitioner.

(b) The insurer may obtain three IMEs for each opening of the claim without authorization by the director. These IMEs may be obtained before or after claim closure. For the purpose of determining the number of IMEs, any IME scheduled but not completed does not count as one of the three IMEs. A claim for aggravation, Board's Own Motion, or reopening of a claim when the worker becomes enrolled or actively engaged in training under OAR 436-120 (Vocational Assistance to Injured Workers) allows a new series of three IMEs. Refer to section (12) of this rule to request additional IMEs.

(c) The IME may be conducted by one or more providers of different specialties, generally performed at one location. If the providers are not at one location, the IME must be at locations reasonably convenient to the worker. IMEs completed within a 72-hour period count as one IME.

(d) The insurer must choose the medical service provider from the director's list of authorized IME providers online at www.oregonwcdoc.info. If a provider is not on the director's list of authorized IME providers at the time of the IME, the insurer may not use the IME report and the report may not be used in any subsequent proceedings.

(e) The provider will determine the conditions under which the IME will be conducted. The IME should be performed in a professional setting that is primarily used for conducting exams. If an IME is not performed in a professional setting that is primarily used for conducting exams, the IME location should be a safe and secure environment, including a place for the worker to disrobe in private, and allow for confidentiality.

(f) IMEs must be scheduled at times and intervals reasonably convenient to the worker and must not delay or interrupt medical treatment that the worker has scheduled.

(g) The insurer must comply with the notification and reimbursement requirements under OAR 436-009-0025 and 436-060-0095.

(h) A medical service provider must not unreasonably interfere with the right of the insurer to obtain an IME by a medical service provider of the insurer's choice.

(i) A medical provider who unreasonably fails to provide diagnostic records for an IME under OAR 436-010-0240 may be assessed a penalty under ORS 656.325.

(j) The worker may complete an online survey at www.wcdimesurvey.info or make a complaint about the IME on the division's website. If the worker does not have access to the Internet, the worker may call the division at 800-452-0288.

(2)IME and WRME Provider Authorization and Removal.

(a) Medical service providers can perform IMEs, WRMEs, or both once they are on the director's list of authorized IME providers.

(b) To be on the director's list of authorized IME providers, a medical service provider must:

(A) Complete the online application available at www.oregonwcdoc.info;

(B) Hold a current license with the provider's professional regulatory licensing board;

(C) Be in good standing as determined by the division. For the purpose of this paragraph, the division determines good standing to mean the provider is not currently, or within the past two years has not been subject to, a disciplinary action or stipulated agreement with the provider's regulatory licensing board that the division determines to be detrimental to performing IMEs; and

(D) Complete the director's Training Guide to Performing Independent Medical Exams including the corresponding quiz both of which are available at www.oregonwcdoc.info; or

(E) Complete a director-approved training course regarding IMEs provided by an outside vendor.

(c) By submitting the application to the division, the medical service provider agrees to abide by:

(A) The standards of professional conduct for performing IMEs adopted by the provider's regulatory licensing board or the IME standards of professional conduct published in Appendix B [See attached] if the provider's regulatory licensing board does not have standards of professional conduct for performing IMEs; and

(B) All relevant workers' compensation laws and rules.

(d) A provider may be removed from the director's list of authorized IME providers after the director finds that the provider:

(A) Violated the standards of either the professional conduct for performing IMEs adopted by the provider's regulatory licensing board or the IME standards published in Appendix B if the provider's regulatory licensing board does not have IME standards;

(B) Has a current restriction on their license or is under a current disciplinary action from their professional regulatory licensing board; or

(C) Has entered into a voluntary agreement with their regulatory licensing board that the director determines is detrimental to performing IMEs.

(e) A provider may appeal the director's decision to remove the provider from the director's list within 60 days of the mailing date of the order under ORS 656.704(2) and OAR 436-001-0019.

(3)IME Complaint Process.

(a) A complaint about an IME may be submitted to the division for investigation.

(b) The division reviews IME complaints to determine the appropriate action under the director's jurisdiction.

(c) The division investigates IME complaints to determine if there is a violation of one or more of the standards of professional conduct or workers' compensation laws or rules.

(d) If the division determines additional information is needed the division will contact the IME provider regarding the allegations in the complaint and request:

(A) A written response regarding the allegations;

(B) A copy of the IME report;

(C) Contact information for scribes, chaperones, or other people attending the IME at the IME provider's request; or

(D) A copy of a video or audio recording of the IME, if the IME was recorded.

(e) If the division does not receive a response to information requested under subsection (d) within 14 days from the date of the request, the division may make a decision based on available information.

(f) The division may contact any person who may have information or view any documentation or items regarding the IME or complaint.

(g) The division will notify the IME provider and complainant in writing of the outcome of the IME investigation.

(h) When investigating a new complaint regarding an IME provider, the division will review all complaints about that provider received in the past two years, excluding complaints where the director found no violation, to determine if there is a pattern of behavior involving the IME provider. If there is a pattern of behavior, the director may take additional action, up to and including removal of the provider from the director's list of authorized IME providers.

(i) An order issued by the director to remove an IME provider from the director's list of authorized IME providers will include a notice of appeal rights under ORS 656.704(2) and OAR 436-001-0019.

(4)IME Training. An outside vendor may provide initial IME training to providers wanting to become an IME provider, as long as the training is approved by the director before it is provided.

(5)IME Related Forms.

(a) When scheduling an IME, the insurer must ensure the medical service provider has:

(A) Form 3923, "Important Information about Independent Medical Exams, "available to the worker before the exam; and

(B) Form 3227, "Invasive Medical Procedure Authorization," if applicable.

(b) The IME provider must make Form 3923 with the attached observer Form 3923A available to the worker.

(6)IME Observer.

(a) A worker may choose to have an observer present during the IME. An observer is not allowed to be present during a psychological examination unless the IME provider approves.

(b) The worker's observer must not be paid to attend the IME. The worker's attorney or any representative of the worker's attorney may not be an observer.

(c) If the observer interferes with or obstructs the IME, the IME provider may ask the observer to leave and continue the IME with the worker's consent or end the IME.

(d) If the worker chooses to have an observer present, the provider must verify that the worker has signed Form 3923A, "IME Observer Form," acknowledging that the worker understands:

(A) The IME provider may ask sensitive questions during the exam in the presence of the observer;

(B) If the observer interferes with the exam, the IME provider may stop the exam, which could affect the worker's benefits; and

(C) The observer must not be paid to attend the exam.

(7)Invasive Procedure.

(a) For the purposes of this rule, an invasive procedure is one that breaks the skin or penetrates, pierces, or enters the body using a surgical or exploratory procedure (e.g., by a needle, tube, scope, or scalpel). If an IME provider intends to perform an invasive procedure, the provider must explain to the worker the risks involved in the procedure and the worker's right to refuse the procedure. The worker must check the applicable box on Form 3227, "Invasive Medical Procedure Authorization," either agreeing to the procedure or declining the procedure and sign the form. The IME provider must make a copy of the signed Form 3227 for the worker and send the original to the insurer.

(b) An IME provider may be sanctioned under OAR 436-010-0340(1) for failing to follow this section.

(8)Recording the IME. With the IME provider's approval, the worker may use a video camera or other device to record the IME.

(9)Objection to the IME Location. When a worker objects to the location of an IME, the worker may request review before the director within six business days of the mailing date of the appointment notice.

(a) The request may be made in-person, by telephone, fax, email, or mail.

(b) The director may facilitate an agreement between the parties regarding location.

(c) If necessary, the director will conduct an expedited review and issue an order regarding the reasonableness of the location.

(d) The director will determine if travel is medically contraindicated or unreasonable because:

(A) The travel exceeds limitations imposed by the attending physician, authorized nurse practitioner, or any medical conditions;

(B) Alternative methods of travel will not overcome the limitations; or

(C) The travel would impose undue hardship for the worker that outweighs the right of the insurer to select an IME location of its choice.

(10)Failure to Attend an IME. If the worker fails to attend an IME and does not notify the insurer before the date of the IME or does not have sufficient reason for not attending the IME, the director may impose a monetary penalty against the worker for failure to attend.

(11)IME Report.

(a) After the IME is complete, the IME provider must send the insurer a report that includes, but is not limited to the following:

(A) Clear and accurate documentation of all tests performed;

(B) Who performed the IME;

(C) Who dictated the report;

(D) A signed quality assurance statement acknowledging that to the best of the IME provider's ability all statements contained in the report are true and accurate; and

(E) A copy of the observer Form 3923A, the invasive procedure Form 3227, or both, if applicable.

(b) The IME provider must communicate with the insurer if the IME provider is unable to provide the report within the insurer's requested time period and provide a date when the report will be sent.

(c) The insurer must forward a copy of the signed report to the attending physician or authorized nurse practitioner within three business days of the insurer's receipt of the report.

(12)Request for Additional IME.

(a) When the insurer has obtained the three IMEs allowed under section (1) of this rule, the insurer must request authorization from the director before scheduling the worker for an additional IME. An insurer that fails to request authorization from the director may be assessed a civil penalty.

(b) The insurer must submit a request for authorization to the director for an additional IME by using Form 2333, "Insurer's Request for Director Approval of an Additional Independent Medical Examination." The insurer must send a copy of the request to the worker and the worker's attorney, if represented.

(c) The director will review the request and determine if additional information from the insurer or the worker is needed.

(A) Upon receiving a written request for additional information from the director, the parties have 14 days to respond.

(B) If the parties do not provide the requested information within the timeframes in paragraph (A), the director will issue an order approving or disapproving the request based on available information.

(d) The director, when making a determination to approve or deny the request for an additional IME, will consider, but is not limited to, whether:

(A) An IME involving the same disciplines or review of the same condition has been completed within the past six months;

(B) There has been a significant change in the worker's condition;

(C) There is a new condition or compensable aspect in the claim;

(D) There is a conflict of medical opinions about a worker's medical treatment, medical services, impairment, stationary status, or other issues critical to claim processing or benefits;

(E) The IME is requested to establish a preponderance for medically stationary status;

(F) The IME is medically harmful to the worker, and

(G) The IME is requested for a condition for which the worker has sought treatment or services, or the condition has been included in the compensable claim.

(e) Any party that disagrees with the director's order to approve or disapprove a request for an additional IME may request a hearing by the board under ORS 656.283 and OAR chapter 438.

(13)Other Exams - Not Considered IMEs. The following exams are not considered IMEs and do not require approval as outlined in section (12) of this rule:

(a) An exam, including a closing exam, requested by the worker's attending physician or authorized nurse practitioner;

(b) An exam requested by the director;

(c) An elective surgery consultation requested under OAR 436-010-0250(2)(b);

(d) An exam of a permanently totally disabled worker required under ORS 656.206(5);

(e) A closing exam that has been arranged by the insurer at the attending physician's or authorized nurse practitioner's request; and

(f) An exam requested by the managed care organization (MCO) for the purpose of clarifying or refining a plan for continuing medical services as provided under the MCO's contract.

Or. Admin. Code § 436-010-0265

WCD 11-1998, f. 12-16-98, cert. ef. 1-1-99; WCD 3-1999(Temp), f. & cert. ef. 2-11-99 thru 8-10-99; WCD 7-1999, f. & cert. ef. 4-28-99; WCD 13-2001, f. 12-17-01, cert. ef. 1-1-02; WCD 9-2002, f. 9-27-02, cert. ef. 11-1-02; WCD 14-2003(Temp), f. 12-15-03, cert. ef. 1-1-04 thru 6-28-04; WCD 3-2004, f. 3-5-04 cert. ef. 4-1-04; WCD 2-2005, f. 3-24-05, cert. ef. 4-1-05; WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06; WCD 5-2006, f. 6-15-06, cert. ef. 7-1-06; WCD 4-2007(Temp), f. & cert. ef. 6-7-07 thru 12-3-07; WCD 9-2007, f. 11-1-07, cert. ef. 12-4-07; WCD 11-2007, f. 11-1-07, cert. ef. 1-2-08; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10; WCD 1-2011, f. 3-1-11, cert. ef. 4-1-11; WCD 2-2013, f. 3-11-13, cert. ef. 4-1-13; WCD 5-2015, f. 8-20-15, cert. ef. 10/1/2015; WCD 1-2016, f. 3-7-16, cert. ef. 4/1/2016; WCD 5-2018, amend filed 03/15/2018, effective 4/1/2018; WCD 2-2019, amend filed 03/11/2019, effective 4/1/2019; WCD 4-2022, amend filed 06/13/2022, effective 7/1/2022

To view attachments referenced in rule text, click here to view rule.

Statutory/Other Authority: ORS 656.726(4)

Statutes/Other Implemented: ORS 656.252, ORS 656.325, ORS 656.245, ORS 656.248, ORS 656.260 & ORS 656.264