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There are a number of misconceptions about the rules on independent medical examinations. Several provisions in the New Jersey Workers’ Compensation Act are helpful in clarifying these misconceptions:
§ Misconception One: An employer must set up an IME in the county where the employee resides. Section 19 states that an IME may be arranged at any reasonable location within the state. There is no limitation to the employee’s county of residence.
§ Misconception Two: An employee may have his lawyer present during the examination. Section 19 states than an employee only has the right to have his or her personal physician present.
§ Misconception Three: An employee may apply for mileage for travel to an IME. There is no statute or rule in New Jersey which requires that employers pay mileage for IMEs, even to those who travel from out of state back to New Jersey.
§ Misconception Four: An employee cannot object to an IME performed by a physician of the opposite sex. Section 68 states that where a physical examination is taking place, an employee may request an exam by a physician of the same sex. If such a request is made, the statute says that the employer “shall” comply.
§ Misconception Five: An employer is limited to only one IME during the case. Section 19 states that an employee may be required to attend an examination “as often as may be reasonably requested.”
§ Misconception Six: An employee is entitled to one missed IME before benefits are stopped. Section 19 states that during the period that the employee refuses to participate in attending examinations, the employer can terminate all workers’ compensation benefits.
§ Misconception Seven: An employer can make a voluntary offer within 26 weeks of MMI or return to work but the percentage of the offer must correspond to the estimate of the defense IME. Case law makes clear that an employer is not required to limit the bona fide or voluntary offer to the same percentage as respondent’s IME. In fact, there is no requirement at all that an IME be done for an employer to make a voluntary offer of partial permanent disability.
§ Misconception Eight: After an IME, the physician must provide a copy of the report to the injured worker. The rules of the New Jersey Medical Society make clear that there is a difference between a patient and an examinee. An independent medical examination occurs when there is no expectation of treatment and therefore no doctor/patient relationship. In that case, the injured worker is an examinee, not a patient, and has no right to a copy of the report that the defense IME expert prepares for the employer or carrier. The report is the property of the employer/carrier. During litigation of a formal claim petition, the parties must exchange independent medical exams at the pretrial stage of the case.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.