Independent Medical Evaluations: Employee’s Rights and Obligations

by Kelly A. Benedict
Clements & Sweet

Generally speaking, when an employee is injured at work, he is supposed to be directed by his employer to a posted panel of physicians. Ideally, he is then supposed to pick a physician from the panel to obtain authorized medical treatment. If he is unhappy with his first panel choice, he is entitled to make one free change from one panel physician to another. For one reason or another, an employee may at some point become dissatisfied with his choices on the posted panel of physicians. Where does he go from there?

Once an employee has an accepted compensable injury, he may have the right to an examination by a physician of his choice, an independent medical evaluation, if certain prerequisites are met. Prior to July 1, 1990, an employee had no absolute right to an independent medical evaluation by a physician of his own choice. Since July 1, 1990, a claimant may obtain an examination by a physician of his own choice if the following criteria are met: 1) The claimant has had an “accepted compensable injury” on or after July 1, 1990; 2) the claimant requests the examination “within sixty days of receipt of any income benefits”; 3) the examination takes place “at a reasonable time and place, within the state or within fifty miles of the employee’s residence”; 4) the examination is performed “by a duly qualified physician or surgeon”; 5) the employer or the insurer is “notified in writing in advance” of the examination; and 6) “such examination . . . shall not repeat any diagnostic procedures which have been performed since the date of the employee’s injury unless the cost of such diagnostic procedures which are in excess of $250.00 are paid for by a party other than the employer or the insurer.” O.C.G.A. § 34-9-202(e) as discussed by Richard C. Kissiah in Georgia Workers’ Compensation Law, Section 18-11, p. 516.

Notwithstanding the employee’s right to an independent medical evaluation, the claimant has certain obligations to attend evaluations scheduled by his employer or insurer. O.C.G.A. § 34-9-202(a) provides as follows: “After an injury and as long as he claims compensation, the employee, if so requested by his employer, shall submit himself to examination, at reasonable times and places, by a duly qualified physician or surgeon designated and paid by the employer or the Board.” An injured worker can be sent to a doctor by the employer without there being a request for hearing on file with regard to the on-the-job injury in question. There only needs to be a claim for compensation benefits by the claimant in order for the employer/insurer to have a right to require the claimant to submit to an independent medical evaluation.  Georgia Workers’ Compensation Law, Richard C. Kissiah, Section 18-10(a) at p. 515.

The law also provides that an employee shall have the right to have a duly qualified physician or surgeon present at such examination. While this is nice in theory, I imagine it would pose practical problems in order to actually get a doctor to go with you to such an examination. If an employee refuses to submit himself to an examination requested by his employer, his right to compensation and his right to have a hearing may be suspended until his refusal or objection ceases. An employer/insurer may not suspend weekly benefits for refusal of the employee to submit to an examination except by order of the Board.

The employer/insurer may send you for an examination to include physical, psychiatric, and psychological examinations as well as reasonable and necessary testing, including functional capacity evaluations. The employer is required to give you ten days written notice of the time and place of any requested examination. They are also supposed to give you advanced payment of travel expenses.

In summary, as an injured worker you may have a right to an independent medical evaluation by a physician of your choosing if you meet all the requirements enumerated above. Even though this right exists, the doctor you choose for an independent medical evaluation does not automatically become an authorized treating physician. If you like the doctor you choose for an independent medical evaluation and you would like him to become your authorized treating physician, you will need to file a Motion with the State Board of Workers’ Compensation seeking a change in treating physicians from the doctor you were seeing prior to the IME to the doctor of your choice. While you may have a right to an independent medical evaluation of your choice, you also have an obligation to submit to examinations requested by the employer/insurer or you may lose your right to ongoing workers’ compensation benefits. The employer/insurer must meet certain requirements mentioned above in order to properly schedule you for an independent medical evaluation as well.

Kelly A. Benedict is a practicing attorney with the firm of Clements & Sweet, in Atlanta. The firm practices exclusively in the area of workers’ compensation claimant’s work. She received her undergraduate degree from Duke University and her law degree at Emory University School of Law. She has been in practice for over eight years and has, in the past, represented employers and insurers as well as injured workers. She can be reached at 404-688-6700.