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Commissioner Dodrill's latest Bulletin is a significant change to common practice for carriers, claims adjusters, and attorneys. West Virginia Insurance Bulletin No. 21-03 interprets W. Va. Code §23-4-8(a) and the physical examination of claimants. It has long been common practice to refer to the physical examinations allowed by W. Va. Code §23-4-8(a) as "independent medical examinations" or "IMEs" despite the fact the statute does not use that term. The Commissioner believes the use of the term "independent medical examination" may lead to confusion or misunderstanding by claimants, especiallypro se claimants. The Commissioner notes the term "independent medical examination" generally refers to an examination performed by a medical examiner who has not previously been involved in claimant's care. The Commissioner notes such an independent medical examination is an examination that is independent of the traditional doctor/patient relationship. In questioning the common use of the term "IME" when the examiner is often hired by the carrier, employer, or employer's attorney to perform the examination, the Commissioner explains: "This does not mean the examination is independent in the traditional or colloquial sense, as it is oftentimes requested and paid for by the party investigating the claim or even opposing the requested benefits."
Commissioner Dodrill reminds us medical examiners have their own professional code of ethics to which they must adhere, and examinations should always be objective and unbiased. Importantly, examiners must follow the statutory guidelines, guidelines set forth in W. Va. Code of State Rules §85-20-1, et seq., and any other applicable guidelines. The Commissioner notes the historical registration and list of approved IME physicians formerly kept by the Workers' Compensation Commission is no longer available. However, examiners are required to verify and provide proof of their American Board of Medical Specialties ("ABMS") or American Osteopathic Association ("AOA") certification to whomever services are provides. See W. Va. Code of State Rules §85-20-5.9.a.
The Commissioner stated private carriers, self-insured employers and their claims administrators should use caution to ensure the use of the term "independent medical examinations" or "IMEs" is not misleading or confusing. More precise language recommended in the bulletin is "insurer's physical examination of claimant", "private carrier's physical examination of claimant", "claimant's physical examination", or "employer's physical examination of claimant", as opposed to the more generic and potentially confusing term "independent medical examination" or "IME".
W. Va. Code §23-4-8(a) provides generally that a private carrier, self-insured employer, or in the case of a claim made to a state administered workers' compensation fund, the Insurance Commissioner may, after due notice and whenever in its opinion it is necessary, order a claimant other than a claimant for occupational pneumoconiosis to appear for a physical examination before a medical examiner of its own choosing. W. Va. Code §23-4-8(a) further provides a claimant and/or an employer may also select a physician of their own choosing to, at their own expense, participate in the examination. With a limited exception in the disclosure of certain psychiatric or psychological reports, the claimant and employer shall be furnished with a copy of the report of examination made by the medical examiner retained by the private carrier, self-insured employer or the Commissioner, if applicable. A physician selected by a claimant or an employer has the right to submit a separate report.
One final sidebar is the Commissioner's statement revisions to Rule 20 are under consideration to clean up the references to IMEs in the treatment guidelines. We will monitor for action on this front.
Spilman Thomas & Battle, PLLC
300 Kanawha Blvd, E.
Charleston, WV 25301