Appeals Board of Utah Labor Commission holds recording of an independent medical examination (IME) not allowed where recording interferes with the employer’s right to have an IME performed by a physician of its choice.
Respondent set an independent medical examination (IME) and functional capacity evaluation (FCE) consistent with the Utah Workers’ Compensation Act. Petitioner objected and was ordered by the Administrative Law Judge (ALJ) to submit to the evaluations.
Petitioner filed an interlocutory motion for review requesting instructions for compliance. Petitioner argued, in part, that any examination by the employer’s expert should require good cause and should be allowed to be recorded per Rule 35 of the Utah Rules of Civil Procedure (URCP). The Commissioner determined that Rule 35 did not apply to proceedings before the ALJ. However, the Commissioner noted there was no statutory prohibition against recording medical examinations and the decision to allow such recordings should be made on a case-by-case basis by the ALJ.
The ALJ then denied Petitioner’s request to record the IME noting it would be contrary to the principles of administrative law, which included moving cases forward without the complexity of tort litigation. Petitioner appealed the ALJ’s order arguing he should be allowed to record the evaluations. The Commissioner upheld part of ALJ Order instructing petitioner to cooperate with the IME and FCE but set aside the part of the Order preventing petitioner from recording the examinations because it was based on general principles of administrative law, and not the particular circumstances of petitioner’s case.
The respondent then moved for an order requesting the parameters for recording the FCE. The ALJ denied the respondent’s request for an order. The respondent noted they contacted several physicians about performing an IME that would be recorded, but each physician objected to having the examination recorded. The respondent then filed an interlocutory motion to review the ALJ ‘s denial with the Appeals Board arguing that petitioner should be instructed to attend an IME and FCE without it being recorded because the respondent’s potential medical consultants refused to perform a recorded IME.
The Appeals Board concluded that the Act gives the employer the right to obtain an IME performed by a physician of its choice, and that takes precedence over any prior allowance with regard to recording the IME. The Commissioner initially allowed the recording because there did not appear to be any specific reason against allowing the recording or any complicating factors that would prohibit the recording at that point. However, the circumstances changed. Recording an IME or FCE is allowed only until it interferes with the employer’s right to have an IME performed by a physician of its choice. The Appeals Board remanded the matter to the ALJ with the instruction that she require petitioner to submit to an IME. If the IME physician objects to recording, the recording shall be prohibited.
Dirk Barker v. Burrell Mining Products and Zurich American Ins. Co. of Illinois, Case No. 17-0570 (February 26, 2019)
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