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February 19, 2021

New Guidance for IME's in West Virginia

On February 3, 2021, West Virginia Insurance Commissioner, James Doddrill, issued Insurance Bulletin  No. 21-03 titled “Physical Examinations of Workers Compensation Claimants”.  The Bulletin provides guidance for the renaming of independent medical examinations, or “IMEs” as the Commissioner has advised that “questions regarding the objectivity of the examinations may lead to confusion or misunderstanding by claimants, especially pro se claimants”.

The Bulletin states:

  • The term “independent medical examination” generally refers to an examination that is performed by a medical examiner who has not previously been involved with the claimant’s care. In that regard, an independent medical examination is an examination that is independent of the traditional doctor/patient relationship.  However, it does not mean that the examination is independent in the traditional or colloquial sense, as it is oftentimes requested and paid for by the party investigating the claim or even opposing the requested benefits.  Of course, medical examiners have their own professional code of ethics to which they must adhere, and examinations should always be objective and unbiased.  Importantly, medical examiners must follow all statutory guidelines, guidelines set forth in W.Va. Code of State Rules §85-20-1, et seq., and any other applicable guidelines, but that certainly does not mean that a party who disagrees with a report of any examination is in any way prevented from obtaining their own physical or medical examination and submitting a separate examination report to contest findings or opinions.

Due to the perceived confusion that referring to an examination scheduled by the Claims Administrator as an “independent medical examination”, the Commissioner “strongly discourages the use of the term”. The Bulletin further clarifies that claimants should not be misled into thinking that this type of examination report is the only report admissible in litigation, or that it carries more weight than other reports or records.

Based on this Bulletin, we are recommending that any communication regarding an examination scheduled by the Claims Administrator be referred to as “W. Va. Code 23-4-8 Medical Examination”.

If you have any questions about how this Bulletin may affect you, please feel free to contact one of the Workers' Compensation attorneys in our Charleston office at (304) 341-0500.