Which way does the scale tip?

If you are hurt on the job and file a workers’ compensation claim, chances are that you will have to meet with a healthcare professional to discuss your injury. It is very common that a doctor or medical examiner will ask you a series of questions to determine the level of pain you are experiencing. It is important to properly answer the questions asked by the healthcare professional because it can affect your pain management.

It is common for your doctor or medical examiner to ask you questions to help determine the amount of pain you are experiencing so they can better manage your pain. You are expected to answer the questions to the best of your ability. Doctors and medical examiners administer a very common questionnaire called the Visual Analog Scale. This questionnaire might seem simple at first, but may actually be quite difficult if you do not know how to properly answer the questions.

The questionnaire asks questions, and you are to answer the questions based on a scale (i.e. 1 to 10 or 1 to 5). Sometimes, the scale has images associated with each number. The images are very helpful because they are normally faces that are expressing levels of pain. If there are no images, there should be instructions. The instructions will most likely have a statement of an amount of pain that is associated with a number on the scale. It is important you know what the scale actually means. Below is an example of a set of instructions for a scale found in a questionnaire[1]:

Level 1 = My pain is barely noticeable.

Level 2 = My pain is noticeable with no distress.

Level 3 = My pain is disturbing but with no distress.

Level 4 = My pain causes me some distress, but I have no coping problems.

Level 5 = My pain causes me distress; I have some coping problems.

Level 6 = My pain causes me distress; I have significant coping problems.

Level 7 = My pain is starting to interfere with my ability to function.

Level 8 = My pain is causing moderate interference with my ability to function.

Level 9 = My pain is causing sever interference with my ability to function.

Level 10 = I’m unable to function at all because of my pain.

Please remember that this is only an example of what a set of instructions may look like. Also, if you are unsure of what something means in the instructions provided to you, be sure to ask your doctor.

Tom Whitley, Esq.

The questions become more difficult if there are no instructions or images provided. If this is the case, be sure to ask the medical examiner to tell you the actual meaning of the scale and numbers. Always remember to keep the instructions in mind because your answers will provide the doctor with valuable information that can alert him to changes in your condition.

If you were hurt on the job, you may have many questions regarding your injury and what steps you need to take. The experienced and knowledgeable attorneys at Taylor and Associates, PLLC are ready to answer your questions. Contact us at help@injuredworker.com or by phone at 1-800-358-CATS (2287).


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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[1] Pain Scale document provided by Sierra Tucson.

In Arizona, You Can Tape-Record Your Independent Medical Examination ("IME")

Workers’ Compensation Insurance Carrier Suspension: In Arizona, You Can Tape-Record Your Independent Medical Examination (“IME”)

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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[1] Ariz. Rev. Stat. Ann. § 23-1026 (C) (2012)

[2] Kwietkauski v. Indus. Comm'n of Arizona, 231 Ariz. 168, 169, 291 P.3d 365, 366 (Ariz. Ct. App. 2012)

[3] Id.

[4]Edmunds v. Indus. Comm’n, 126 Ariz. 486, 487, 616 P. 2d 946, 947 (App. 1980); Garza v. Indus. Comm’n, 17 Ariz. App. 525, 530, 498 P. 2d 599, 604 (1972).  

[5] Kwietkauski v. Indus. Comm'n of Arizona, 231 Ariz. 168, 169, 291 P.3d 365, 366 (Ariz. Ct. App. 2012)