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May 15, 2019

Does an injured worker have to go to an independent medical examiner?

Workers receiving weekly payments are sometimes unaware that if they fail to attend an independent medical examiner (IME) appointment without reasonable excuse they risk having their weekly payments suspended.

The Workplace Injury Rehabilitation and Compensation Act 2013 states that insurers may require a worker who lodges a claim to attend IME appointments at “reasonable intervals”. If the worker “unreasonably refuses to have, or unreasonably obstructs, an examination” the insurer may suspend their weekly payments until the examination occurs. Once the worker attends the examination, the suspension on weekly payments is lifted but the worker forfeits any payments payable during the period of suspension.

The role of the IME

The IME appointment is designed to answer questions about a worker’s injury, work capacity and treatment set by the insurer and to provide a report. The insurer uses the report when making decisions about a worker’s entitlements. The role of the IME is not to treat the worker and this can be a point of confusion. The IME has been engaged by and reports to the insurer. This also means that what a worker says to an IME is not confidential. The IME must seek the worker’s consent to the examination.

Frequency of examinations

Insurers are likely to send a worker to an IME appointment when they first lodge their claim. This is to get the examiner’s views on whether the injury is work related, and on the worker’s capacity and treatment needs, as well as how long they are likely to be off work. The frequency of IME exams after that can vary, but a worker should expect to be reviewed if they have been on payments for two years or more. This is to seek the IMEs opinion about whether the worker satisfies the test to stay on payments beyond 130 weeks. When considering the frequency of IME appointments, the Worksafe Claims Manual requires insurers to consider the type, severity and stability of the injury and purpose of the examination.

Attendance at an examination

The timing of an IME may be relevant to whether a worker’s refusal to attend is considered reasonable or unreasonable, as well as what other commitments a worker might have on the day of examination. The Claims Manual states that workers should be given at least 7 days’ notice of an examination and that the agent should contact the worker to check their availability and explain why the appointment has been arranged. The worker is also to be notified in writing about the appointment. The purpose of the examination would appear to be another consideration and it would seem quite unreasonable to expect a worker to attend an IME if the insurer is merely ‘shopping’ for another opinion, a problem identified by the Victorian Ombudsmen and contrary to the Claims Manual.

Complaints procedure

Complaints about IMEs can be made to Worksafe. If you are concerned about attending an IME, contact a lawyer for advice as individual circumstances vary.

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