The State of IME Recording in Washington

By Chris E. Fender, Attorney at Law

Recently, the Washington Department of Labor and Industries introduced a six-month-long third-party recording pilot program for independent medical examinations. Why introduce this pilot program, you ask? To answer that question, let’s start with a quick look at the past two years of independent medical examination legislation and rulemaking to better understand where we are today.

Independent medical examinations are building blocks and lynchpins in Washington workers’ compensation claims, and for decades, the Department of Labor and Industries  and self-insured employers have relied upon these qualified medical examiners, who are experts in their fields. Over the years, workers’ representatives  voiced displeasure first with regard to the frequency and number of these examinations, and then with respect to their inability to record these same examinations. In 2023, these voices grew loud enough to successfully lobby for the passage in the Washington State Legislature of SHB 1068, which amended RCW 51.36.070 to include a worker’s right to record their IMEs, with very loose parameters. The statute provides workers with the right to record examinations, but provides no right for examiners or employers to do the same. (Even though there are arguments that co-recording is permissible under privacy law, the Department interpreted this provision as precluding examiners from co-recording the worker’s exam, without the worker’s approval and consent.)

Therefore, 2024 was a very turbulent year for employers, claims examiners, defense attorneys, and medical examiners alike. To begin, the statute did not require  workers to inform employers of their intent to record an examination until seven days before the scheduled examination at the latest. The natural consequence of this was employers encountered repeated delays in claims processing due to workers  objecting at the eleventh hour to being co-recorded. As if that weren’t enough, workers successfully attacked one of the few elements of SHB 1068 that offered medical examiners any semblance of protection: a prohibition against posting footage on social media. In Ten Injured Workers v. State of WA, et. al, 32 Wn. App. 2d 124, 553 P. 3d 726 (2024), the plaintiff workers argued that any statutory prohibition against posting material on social media was a violation of their first amendment rights. They prevailed on summary judgment, and their victory was upheld in 2024 by the Washington Court of  Appeals.

Faced with the daunting challenge of attempting to satisfy both workers protected by the new recording statute and examiners wary of worker motives, some defense practitioners began exploring the possibility of engaging private third-party videographers who would be responsible for filming the examination and maintaining custody of the same to ensure all parties were on level footing. In practice, the parties could agree on a videographer and how the fee would be paid. In the fall of 2024, the Department intervened and proposed its own third-party videographer rulemaking, but when it appeared neither workers nor employers were in favor of the proposed rules, the Department abandoned them.

Then in February 2025, the Department pivoted toa third-party recording pilot program with a vendor titled Medical Memory scheduled to operate from March 1, 2025 to September 1, 2025; at which time the Department would evaluate the program’s effectiveness. The purposes and goals of the program, as described by the Department, are:

• The service provides an independent third-party that workers could select at no cost if they wished to record.
• The services is voluntary, and workers can still co-record if they wish.
• The Department has contracted with Medical Memory as the centralized vendor for the process.
• Medical Memory would maintain the chain of custody of the video, but workers could access it, like a medical record, from Medical Memory’s database. Examiners can obtain copies by contacting the Department at [email protected] and including the Date of the IME, Claim # and Worker Name.
• The process is certified as HIPAA-compliant.
• The process is intended to avoid the delays described above.
• IME panels who intend to participate in the third-party recording program will have provided the Department with an inventory of devices to be used by February 21, 2025. The Department, in turn, will provide the panels with authentication codes for each device to securely record using the Medical Memory software.

The Department may be thinking the workers will  be incentivized to participate in this program, as it would cut back on delays of the administration of their claims, the recordings would be at no cost to them, and workers would have individual access to their recordings whenever they want through Medical Memory. But, questions still exist with this new pilot policy. If workers are still allowed to co-record with the third-party recorder, what is the point of the third-party recorder? What deterrents would there be under this pilot program to dissuade workers from alteration or misuse of recordings once workers receive them? Can employers and examiners assume that the same consequences with regard to alteration or misuse of recordings exist for workers in this pilot program as are enumerated for their own recordings in RCW 51.36.070? It seems very likely the Department will encounter these questions over the course of the next six months.

This program does appear to be a step in the right direction, and certainly an improvement over a scenario in which workers have unilateral recording rights and seemingly no guardrails. In theory, the program protects examiners and gives workers the independent extra set of eyes they have said they want. But, some IME panels have prioritized hiring new medical examiners more accustomed to being recorded, thus eliminating much of the concern previously chronicled. Many medical experts have experience in civil litigation, in which CR35 examinations are routinely recorded. It may be that IME providers will need to adjust to the exam recording landscape, because it is more than likely here to stay.

Ultimately for employers, the question is how to keep claims moving forward in light of all these new programs and regulations. No matter which direction these regulations may turn, rest assured Reinisch Wilson will be here to make sense of it all and work with our clients and opposing counsel to allow these experts to do their work.