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The rules for recording and taping IMEs in New Jersey became much clearer with the June 15, 2023, New Jersey Supreme Court ruling in DiFiore v. Pezic, (Nos. A-58/59/60-21) (087091). While the case involved three separate civil court defense exams, there is no reason that the principles set forth in this consolidated decision will not be applied to workers’ compensation cases.
The basic rule in this case is that if the examinee (petitioner) wishes to record or tape an examination, counsel for petitioner needs to make a request of respondent. Although the case does not discuss physician recording of examinations, it would seem that the same rule should apply to physicians. The Supreme Court reviewed the three separate cases where objections were made by the defense to allowing third parties to attend an IME or to record an IME. The Court said, “We therefore hold that if a plaintiff seeks to bring a neutral third-party observer to a Rule 4:19 exam (defense medical examination), or to audio or video record the exam, plaintiff’s counsel should notify defendant. If defense counsel opposes the third-party observation or recording, the parties should meet and confer in an effort to reach agreement. Failing an agreement, defendant can move for a protective order under Rule 4:10-3 to bar the observation or recording.”
In the three cases at issue in DiFiore, two involved objections to bringing a third party to the examination and one involved recording a psychological examination. One plaintiff had a cognitive disorder, and another had a language barrier. In the case involving a neuropsychological exam, the neuropsychologist refused to conduct the examination if it would be audio-recorded. A protective order was sought in that case. The Supreme Court said that the burden of seeking a protective order is on the defendant, not on the plaintiff.
The practice of seeking a protective order is not likely to spread to workers’ compensation given that there are about 100,000 active claim petitions in the Division and literally hundreds of thousands of IMEs done each year by a fairly limited number of physicians. Judges are already handling enormous numbers of cases daily, so parties will simply work out the requests to record. Many IME doctors already assume that recording is frequently being done without a request being made. There may also be IME doctors who are now recording examinations as well without a request being made. The rule of this case is that a request must be made to record; otherwise, the recording will not be evidentiary. This rule will almost certainly be applied to physicians as well as examinees. The Supreme Court and the Appellate Division in DiFiore noted that the advent of smart phones makes it easy to unobtrusively record an examination.
While some may long for the old days when recording examinations was unheard of, those days are long gone. There may be positives that emerge from the practice of seeking consent to record. The rumor mill is often busy with comments that a certain doctor only spent one minute conducting the medical examination, or a certain claimant told the IME doctor that he or she had no complaints whatsoever. Recorded exams done by consent will provide answers and slow down the rumor mill. The Division should consider some basic rules for all practitioners to follow in requesting consent to record either by the physician or examinee or both.
John H. Geaney, Esq., is a Shareholder and Co-Chair 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 email@example.com.