The New Rule 8 on Insurance IME exams

If a claimant is being sent for an IME (Independent Medical Examination) by the insurance selected doctor then there is a new rule, effective November 1, 2009 that is applicable. The hew rule came about because of a new statutory provision which requires that these exams be audio recorded. The new rule is worth reading and allows discovery of the audio and more. The point in my view is to keep the exam honest and relevant so it allows the claimant some recourse to protect him or her from exams which contain irrelevant and confidential information that should be stricken. It will be interesting to see how this plays out over time.
UPDATE December 2010: Received a recent comment that accused a Denver doctor, Dr F. of stopping the audio when she deemed it and specifically when she deemed the patient question as not valid enough. While I cannot post the comment without verification I certainly can say that once the audio starts I would consider any tampering with it as an improper alteration which violates the rule. That could mean striking the report is one option for a judge. I can say that insurance IME's can be very one sided. Claimants may not have the resources to obtain their own IME but insurers often can do so. For many it is not a level playing field although a Division IME set up through the state can be a very important added method of reviewing treatment, rating and more. The insurance IME (not the same as a Division IME) often, but not always, is looked at as a hired gun for the defense. At times I have seen insurance IME's provide a worthwhile opinion but that is the exception rather then the rule. By the way the statute at 8-43-304(2)(a) does say that it should not be construed to prohibit a party from making their own audio recording of the exam.

Emergency Rule 8 on Recordings

The Division has issued what it calls an emergency rule, effective for claims after August 5, 2009. The new provisions are Rule 8-8 to 8-13 and address when an insurer or employer sends the claimant to its own Independent Medical Examination. Most of us in this field know that when the insurer does this it is seldom an independent objective examination. Insurers tend to pick doctors who favor the insurance side of things. What the rule does is provide details on how this examination must be recorded, how to get a copy and what remedy you have if the recording has confidential information the claimant feels is not to be revealed. All this is because of a new statutory provision just passed by the Colorado legislature. Apparently enough questions have surfaced about insurance oriented doctors asserting what happened during their examination which some feel is untrue. The new law and rule are designed to audio record the examination. Read the new Emergency Rule 8 here. This new rule is a bit complicated so you do need to read it carefully. Clearly after the examination a claimant can receive the first copy even before the insurer. Whoever first requests it must pay for it ($20) but if the insurer wants it they must pay $20 for the first copy for the claimant.

Changing Physicians by statute and rule

Traditionally in workers comp in this state you have a physician designated to provide you with medical care selected by your employer (who in turn usually has been provided with help on this by the insurer). Then if you were unhappy or just needed another doctor you had three ways to do it. You could agree with the insurer to a new named doctor, or you could send a 20 day letter per 8-43-404(5)(a)(VI)that you want a certain doctor who then would be your doctor if the insurer did not timely respond denying it. Last, you could seek a hearing. If there was a dispute on this you'd have to seek a hearing and that takes time to schedule. In a practical sense it was not easy to get a fast change. To this traditional process was added another way and a new wrinkle. Now the employer has to provide you (in writing) with two providers for you to pick from. If not you can choose your own doctor. It also allows for you to switch between the doctors. Sounds simple but it's not. You only have 90 days to do this from your date of injury. You have to comply with the statute at 8-43-404(5) and with the rule noted as Rule 8-5. You have to use the form provided by the Division. In fact they are proposing a change to Rule 8-5. So what do you do? I'd check the Division website for the latest information and proceed from there. Remember though if there is a dispute then you may still need a hearing unless it can be quickly resolved.

Rule 8 is new on authorized doctors

Effective now the new rule 8 for the Colorado Division of Workers Compensation sets forth the law that claimants should be provided with more than one doctor to treat the work injury and also with a right to easily switch. The prior law was that your employer simply had the first right to designate your treating doctor. Such a process has never been liked by claimants as often it meant treatment by a doctor handpicked by the employer/insurer. While some of such doctors are reasonable others are not or even hostile to a claimant (at least that is what I have been told). The new law eases up a bit but it is still permitting the employer to provide you with at least two doctors and one would then become your treating doctor. It also adds a new way to switch to the other doctor (provided you follow the rule). In the past the way to switch doctors would be to ask for a change or seek a change by order of a judge. Usually a sharp insurer would prevent that and force you to seek a hearing. At a hearing the Judge would not just grant you a change without some basis and all this took quite a bit of time to set up. The new law adds another option so it is a bit of an improvement. I still expect the two doctors you are offered to be handpicked by the employer/insurer. Here is the new rule:
Rule 8