On Nov. 20, 2012, an Arizona court decided whether a workers’ compensation
insurance carrier could suspend an injured worker’s benefits for obstructing an
independent medical examination (“IME”) because the injured worker stated she
was going to tape-record (audio) the examination.
An independent medical examination is simply when a medical
professional (usually selected by the insurance carrier) who has not previously
seen the injured worker as a patient examines the injured worker.
The issue was brought before the court because Arizona law
states that “[i]f the employee refuses to submit to the medical examination or
obstructs the examination, his right to compensation shall be suspended until
the examination has been made, and no compensation shall be payable during or
for such period.”[1]
The court concluded
that a “claimant, who expressed an intention at [the] beginning of [an]
independent medical examination (IME) to tape-record the IME, without having
made any prior communication about recording it, did not commit a “wrongful
act” constituting obstruction of IME”[2]
What
does this mean?
As an injured worker
who is seeking to receive workers’ compensation and who is asked to see a
doctor to have an IME performed, you can tape record the independent
medical examination using an audio recorder.
Why is
this important?
The Kwietkauski holding specifies that when you express “an
intention at the beginning” of your IME to tape-record the examination, that
recording cannot be said to be a “wrongful act” constituting an obstruction.[3]
Many cases in Arizona have further stated that “benefits may not be suspended
in the absence of a wrongful act by the employee.”[4] You
as the injured worker “must ‘volitionally’ (consciously) refuse to attend or
obstruct the IME.
What
if the IME physician does not allow the tape recording?
Under Arizona law, you have a legal right to audio record
your independent medical examination. If the IME physician refuses to allow you
to record the examination, he may, “[b]ut a doctor’s policy or preferences [do]
not trump [your] right to record [your] IME.”[5]
Just remember that the doctor does have the right to say no to the recording or
refer you to another physician.
When
do I seek counsel from a licensed and competent attorney in good standing with
the state of Arizona?
A medical examination can sometimes be an overwhelming
experience and not knowing what you can and cannot do only adds to the
pressure. As an injured
worker you want to be sure that you take all the right steps to
ensure your rights are secured so that you can receive the medical care you
deserve. The counsel of a competent attorney certified by the State Bar of
Arizona as a workers’ compensation specialist is a great way to ensure that you
get all your questions answered so that you are able to boldly move forward
toward achieving your desired legal goal.
Meet Benjamin
F. Manion, a Certified Specialist in Workers’ Compensation by the State Bar of
Arizona at Taylor and Associates, PLLP
Benjamin
F. Manion is a certified specialist in workers’ compensation by the
state bar of Arizona with over 10 years’ experience as a licensed attorney. Mr.
Manion is fluent in Spanish and a graduate of Arizona State University.
Contact Mr. Manion on the web at www.TaylorandAssociates.net
or by phone at 1-888-650-4798 for your free consultation.
Attorney Advertising. This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.
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