|Thomas Pollart & Miller LLC |
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|Colorado Workers' Compensation Update |
IME Audio Recordings - An Overview
Through the amendment of § 8-43-404(2), C.R.S. (2009) and
the adoption of W.C.R.P. Rules 8-8 through 8-13, Colorado has taken the position that some
oversight of the IME process is appropriate.
Audio recordings of workers' compensation IMEs are automatically
The pertinent amendments to § 8-43-404(2), C.R.S. (2009)
now have several new requirements:
- The examining physician must prepare a written report describing the
examination performed and describing all written materials reviewed, along with
all findings and conclusions made;
- An audio recording of the IME must be made in its entirety
and retained by the physician;
- The physician must disclose to the employee at the
beginning of the exam that it will be recorded; and
- If a recording is requested, an exact copy must be
provided to the parties.
Note that these amendments became effective on August 5, 2009, but
by the terms of the new law, they "shall apply to workers' compensation claims
filed on or after the applicable effective date of this act."
The Colorado Division of Workers' Compensation promulgated
the new W.C.R.P. Rules 8-8 through 8-13 to provide details on how the
recordings are to be accomplished. A summary
of the key requirements under Rules 8-8 through 8-13 are as follows:
- "Anytime" prior to the IME, a form that has been
promulgated by the Division must be given to the claimant for his or her
signature. The form provides information
regarding the IME process. The claimant
must sign the form, or the IME cannot proceed;
- The audio recording must be saved in a digital format by
the examining physician. The physician may charge $30 for recording the
examination and $20 for each copy of the recording that is provided;
- The physician must
provide to "both parties" a written
report of the IME;
- If a party requests a copy of the recording, the first
copy must be provided to the claimant regardless of who makes the request. The requesting party must pay for the
- Any party may request a copy of the recorded examination
within 20 days of "the date the written medical report was issued;"
- Any request for a copy of the recording must be in
writing, accompanied by payment of the $20 fee and copied to all other parties.
Regardless of who makes the initial request for the recording, the physician
must provide the recording only to
the claimant within 15 days of the request;
- Within 15 days of when the recording is "provided," the
claimant must state in writing any portion of the recording that should remain
confidential on a form issued by the Division of Workers' Compensation. If the
claimant does not provide this statement within 15days, the respondents
may request a copy of the recording in writing from the physician. No time limit
is stated for this request, but the physician must provide a copy of the
recording to the respondents within 15 days of the date the request is
- Within ten days of the claimant's written statement being
"provided" to the respondents, the respondents may file a response with the
Division's Customer Service Unit;
- The Division will submit the claimant's written statement,
any response thereto, the recording, and the IME report to an ALJ. An ALJ will rule on the claimant's allegation
that part of the recording should remain confidential. If the ALJ determines that part of the
recording should be confidential, the ALJ "shall then produce, or cause to be
produced, a copy of the recording with the confidential information redacted;" or
- If the ALJ determines that no redaction is necessary, the
recording will be returned to the claimant and the respondents may request a
copy of the recording from the doctor within 20 days of the date of the ALJ's
However, given the complexity of the new Rules 8-8 through
8-13, there will be many questions left unanswered regarding this process which
will probably require many case-by-case evaluations and issues raised to the administrative
law judges. For example, it appears that
these recording requirements only apply to claims that were filed on or after August 5, 2009. An issue arises when a work-related injury
occurs before August 5, 2009, but a "Workers' Claim for Compensation" is not
filed until after August 5, 2009.
Also, there is no indication as to what equipment is
required for the recording of the IMEs.
Consequently, physicians have expressed some confusion over what
equipment is required and if video equipment may be used. At this point, the specific kind of equipment
has been left to the discretion of the physicians with the caveat that if the
recording fails, they may be required to repeat their examinations for no
Another issue concerns whether respondents may seek and
obtain recordings of IMEs conducted by claimant's experts. There is no answer to this question. Whatever the reasons are for permitting
recordings of respondents' IMEs, it might be argued that the same concerns
apply as well to claimant's IMEs by their own experts. Thus, it is possible that respondents will
seek orders requiring claimants to record IMEs with their own experts.
Employment Law Corner
This quarterly edition
of Employment Law Corner addresses the potential legal issues and liabilities
that may arise when employers utilize social networking websites either as an
online day-to-day business tool or while conducting online monitoring of
applicants and current employees. In the
last several years, there has been an explosion in the popularity of online
social networking websites. Websites
such as Facebook, MySpace, Twitter, and other online blog websites can present a
tremendous amount of opportunity for employers, but at the same time present a
series of legal pitfalls. This article
will discuss what legal issues employers must consider with social networking
websites in the workplace.
There are several
issues that must be considered prior to engaging in such monitoring or adopting the use of social networking websites as a day-to-day business tool. Specifically, employers must understand the
potential issues of discrimination, privacy, privilege, and confidentiality.
A discrimination claim may arise when an employer uses social networking sites to
pre-screen candidates. Employers have
increasingly used social networking websites to provide insight into whether a
candidate will fit into a company's cultural makeup along with other extensive
justifications for screening applicants through such monitoring. Employers must understand, however, that in
pre-screening an applicant's Facebook or MySpace page, an employer might become
aware of a candidate's race, religion, gender, sexual preference, age,
nationality, marital status or disability.
Consequently, through searching these sites, employers might obtain
information about applicants they otherwise would not have known by simply
interviewing applicants. As a result,
such information learned may result in improper hiring decisions based on
information that they cannot legally use in making hiring decisions. This pre-screening issue potentially
implicates a number of federal employment statutes including the Americans With
Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964
(Title VII), the Age Discrimination in Employment Act (ADEA), and the
Uniform Services Employment and Reemployment Rights Act (USERRA). If employers utilize information such as age,
disability, race, sex, etc., as the basis for denying employment to applicants, liabilities from the above listed statutes could result.
Another issue that
arises with social networking in the workplace is privacy. It should be noted that employers must be
aware that monitoring through use of social networking websites may result in
invading employees' privacy. Generally,
an employer may infringe upon an employee's privacy rights if the employee's
interest in keeping the social networking information private outweighs the
employer's interests in obtaining the information and the employer nevertheless
requires that the employee provide such information. A key component of this issue is that an
employee must take reasonable efforts to keep the information private.
Hence, if an
employee has not restricted access to the information, i.e., allows the
worldwide web viewing public to view such information, then the employee did
not take the reasonable steps to keep the information private from an
employer. However, if an employee has a
personal webpage that is accessible only to those who enter a proper user name
and password and/or other processes in recovering the information, then the
employee has taken reasonable steps to keep the information private. In this latter example, the employee would
have a privacy interest in the information posted on his or her social
networking webpage. Employers should
know that if they choose to access information that employees or applicants have
posted in a private manner on such websites, there could be potential liability
if employers seek to obtain such information without permission from the
employee or applicant.
Privilege and Confidentiality Concerns
courts have found that employers violate state professional conduct ethics
rules by retaining and using e-mails protected under the attorney-client
privilege doctrine. At times,
information posted via social networking sites can be obtained through the employee's
e-mails that were sent through the employee's work computer. This information may have also been sent to
an employee's attorney and later accessed by the employer. While this is an issue of first impression in
courts, this question will likely turn on whether the employee took adequate
steps to protect the confidentiality of her privileged communications between herself and her attorney. Thus, while
this area of confidentiality is unclear, the lesson for employers is to have a
properly-drafted e-mail policy that is disseminated to employees and updated as
appropriate that clearly identifies the loss of such confidential
Social Networking Website Policy
It is further
recommended that the adoption of a social networking policy should also be
developed to avoid the potential legal issues discussed above. In choosing to adopt such a policy, the employer should consider the
goals of this type of policy which include protecting a company's: (1) trade secrets, confidential, proprietary
and privileged information; (2) reputation; and (3) privacy of its employees. Furthermore, an effective social networking
policy should establish guidelines regarding whether employees can use social
networking websites during working hours, and if so, under what
Due to the
ever-increasing popularity of social networking websites, employers must
embrace that day-to-day use of such websites can provide useful resources. With that said, employers should consider and
recognize the potential liabilities that may arise when attempting to take
advantage of these resources.
The Neuropsychologist Dilemma
litigation, more and more cases involving head injuries include additional subjective claims from claimants and
plaintiffs of cognitive dysfunction and impairment including symptoms such as
word finding problems, confusion, and emotional instability. To address these limitations and alleged
injuries, an independent medical examination and report from a licensed
neuropsychologist are becoming increasingly more useful.
syndromes, along with psychological effects of closed head injuries, are often
impossible to verify with objective radiological studies such as MRIs or CT scans. Neuropsychologists, however, run a scientific
battery of tests, the results of which can be convincingly explained with supporting
evidence to a jury or a judge.
dilemma in utilizing a neuropsychologist arises when the parties request the
use of, or access to, the raw testing data compiled during the independent
medical examination. Neuropsychologists
frequently refuse to disclose the raw test data based on ethical objections. The
American Psychological Association Ethical Principles and Code of Conduct §9.04
states, "Psychologists may refrain from releasing test data to protect a
client/patient or others from substantial harm or misuse or misrepresentation
of the data or the test..." This refusal
to disclose the raw test data creates a confrontation between the legal rules
of disclosures in both workers' compensation and the Colorado Rules of Civil
purpose of discovery is to eliminate surprise or ambush at trial and to give
both parties' access to information that can help them to better value the
case. A report from a neuropsychologist,
along with the underlying data can confirm the presence of cognitive dysfunction
and significantly increase the value of a claim. Alternatively, a report showing no evidence
of cognitive impairment or injury coupled with the absence of an objective
injury can thwart a party's attempt to inflate their damages.
and neuropsychologists will also argue that the test questions and responses
include copyrighted material which could endanger the integrity of the
tests. This argument is much like the
SAT or LSAT sponsors' concerns that dissemination of testing materials could
allow future test subjects to artificially manipulate the outcome and
invalidate the test scores.
One of the
effects this issue has on litigation is increased costs and expenses. Neuropsychological testing usually requires 1
to 2 full days of testing and additional time for the neuropsychologist to
evaluate the results and draft a report which can be expensive. Their refusal to release test data, however,
can also create the need for additional discovery motions to the court which
can increase litigation expenses and attorney's fees in addressing the issue.
steps can be taken once a neuropsychological evaluation is contemplated to
avoid unnecessary motions practice and expense.
The neuropsychologist's position on disclosures should be addressed
prior to their retention to determine whether the issue will arise at all. Stipulated protective orders in which the
other party agrees to release the information only to other qualified
neuropsychologists or psychologists have been used in several cases to
eliminate the conflict.
in Colorado, neuropsychologists can be ordered
by the courts to produce the information given the court's discretion and the
broad language supporting disclosure in the Colorado rules. Parties should be aware, however, that in
some states legislative statutes have been passed creating an exception to the
judicial rules of discovery foreclosing the ability of a party to obtain this
type of information from psychologists.
A careful analysis of the jurisdiction and the necessity to your case of
the underlying test data should be considered early on and the costs associated
with obtaining such materials should be included in any discussion regarding
the retention and use of a neuropsychologist or psychologist expert.
This Newsletter is prepared as a service to our clients and prospective clients. This publication is not intended as a substitute for professional advice in a given case. Instead, this publication is meant to advise the reader as to general legal principles and trends. We welcome feedback concerning the Newsletter or suggestions for future topics to discuss. Please contact us with your specific questions. If you would like to receive this Newsletter by e-mail when it is published, send a message to ThomasPollart&MillerLLC@tpm-law.com
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Again - Thank you for reading!
Thomas Pollart & Miller LLC
The firm of Thomas Pollart &
Miller LLC provides aggressive, comprehensive and responsive legal services to
employers, businesses, and insurance carriers throughout Colorado,
Utah, and Nebraska. The firm emphasizes
litigation defense in insurance defense with an emphasis on workers'
compensation and subrogation claims. In addition,
the firm also represents clients in employment law and
general tort liability defense. However, representing employers and
insurance carriers in litigated claims is only part of our firm's practice, as
we aggressively represent our clients in all facets of the defense arena by
providing both front-end legal advice and counseling, in addition to the back-end litigation defense. Our attorneys have drafted workers' compensation
legislation, handled bad faith claims, and advised clients on policy and
commercial contract issues. Our attorneys also provide employers
comprehensive advice on handling employment issues as well, inclusive of the
development of and drafting of employment handbooks, defense of discrimination claims,
commercial contracts review and drafting, and general liability claims.