CRACKDOWN ON IME NOTICE LANGUAGE THAT IS “NONSPECIFIC”

By Isaac S. Conzatti, Attorney at Law

Ordering an IME is one of the most common and important steps to investigating and further processing a claim. This is why it can be extremely frustrating when a suitable IME slot is identified, the notice is sent out timely, and then the claimant does not show up. A new IME may then need to be rush-scheduled and from a narrower list of providers given the 10-day IME notice requirement under OAR 436-060-0095(3)(b) and the tight deadlines to respond to a new claim or a new condition request.

While the claimant can face penalties or a suspension of benefits for no-showing an IME, requesting and obtaining this penalty is subject to very strict requirements. The Director will first examine the IME notice to ensure that the notice satisfies every single rule, down to the tiniest detail. There has been a growing trend of IME notices being found invalid because the notice did not include a sufficient “statement of the specific purpose” under OAR 436-060-0095(3)(d)(B). Overly broad, “generic” statements that attempt to cover all conceivable purposes may be easier to put in a form letter, but they leave the IME notice vulnerable to review.

The ideal way to avoid a finding that the IME notice is “nonspecific” is to have a system that tailors each IME notice to the actual specific purpose for that forthcoming IME. Examples of the most common reasons for obtaining an IME are provided below:

“The purpose of this IME is…”

• To investigate initial compensability of your claim of injury.
• To investigate the compensability of your request for acceptance of additional conditions.
• To investigate the compensability of a request for X procedure (i.e. surgery, expensive therapy, etc.)
• To determine the current status of your accepted conditions and an updated treatment plan.
• To respond to your attending provider’s request for an IME.
• To obtain closing impairment information in a mandatory closing examination.*

*Note: This specific IME purpose is required to justify issuing a Notice of Closure for failure to attend a mandatory closing exam under OAR 436-030-0020(1)(d). The IME notice must also include the other requirements in OAR 436-030-0034(3)(a).

While some “nonspecific” IME notices may continue to be found valid by the WCD, “Murphy’s law” dictates that the IME notice will be found invalid for the most critical IME on the most high-exposure claim in your split. That is why it is said, an ounce of prevention is worth a pound of cure.

As always, please do not hesitate to contact the attorneys at Reinisch Wilson P.C. with any questions or concerns related to this information or if any similar disputes arise in your cases.