DEPARTMENT OF LABOR AND EMPLOYMENT
Division of Workers’ Compensation
7 CCR 1101-3
	WORKERS’ COMPENSATION RULES OF PROCEDURE

RULE 8		Authorized Treating Physician /
Independent Medical Examination

8-8	INDEPENDENT MEDICAL EXAMINATIONS

For claims filed on or after August 5, 2009, the following rules apply when the employer or insurer causes an independent medical examination to be conducted pursuant to section 8-43-404.  Prior to each such examination the employer or insurer shall ensure that the examining physician is provided written notice that describes the requirements relating to recording the examination as set out in statute and these rules.  

8-9	NOTICE TO CLAIMANT

(A)	Prior to commencing the examination the injured worker must review and sign a form issued by the Division that contains information regarding the independent medical examination process.  A language interpreter may provide assistance if necessary.  This form may be presented by the examining physician or by the employer, insurer or third-party administrator anytime prior to the examination.  The injured worker shall sign the form to reflect receipt of the information.  The injured worker, examining physician and all parties are entitled to a copy of the signed form.  The examination shall not take place unless the injured worker has signed the form.  Refusing to sign the form shall constitute refusal to submit to the independent medical examination.
(B)	Immediately prior to the examination, the examining physician shall verbally notify the injured worker that the examination will be audio recorded.   

8-10	AUDIO RECORDING AND FEES

(A)	The examining physician shall not alter the recording.   
(B)	The required audio recording shall be saved in a digital format.  The examining physician shall retain the original recording.    
(C)	The examining physician shall be compensated for conducting the examination pursuant to the medical fee schedule, Rule 18-6(G)(4)-Special Reports.  In addition, the examining physician may add a $30 charge for all recorded examinations.  The physician shall be entitled to charge $20.00 for each copy of the recording that is provided.   
(D)	If a party requests a copy of the audio recording, regardless of which party makes the initial request the first copy of the recording is provided only to the injured worker.  If the injured worker makes the initial request for a copy of the recording, he/she shall be responsible for the cost of the copy.  If the employer/insurer makes the initial request for a copy of the recording, it shall be responsible for the cost of the copy provided to the injured worker. The physician may require payment prior to releasing a copy of the recording.

8-11	PROCESS

(A)	The recording shall not be released to anyone other than a party to the claim or the Division. This rule does not prohibit an employee or vendor of the examining physician or the Division from access to the recording for purposes of copying or transcribing the recording. 
(B)	The examining physician shall provide to both parties a written medical report prepared as a result of the independent medical examination.
(C)	Any party may request a copy of the recorded examination within twenty (20) days of the date the written medical report was issued.  All requests for copies shall be made to the examining physician, in writing, with a copy of the request to all other parties.  The written request shall include the address to which the copy is to be provided along with payment of $20. 
(D)	If the injured worker makes the initial request for a copy of the recording, the examining physician shall, within fifteen (15) calendar days of the date of the written request, provide a copy of the recording to only the injured worker.
(E)	If the employer/insurer makes the initial request for a copy of the recording, the employer/insurer’s written request shall instruct the examining physician to provide a copy of the recording only to the injured worker.  The employer/insurer’s written request must also provide the address for the injured worker.  The examining physician shall provide a copy to the injured worker within fifteen (15) calendar days of the date of the written request.     
(F)	If the injured worker alleges that the recording contains medical information not relevant to the workers’ compensation claim which should remain confidential, he/she must raise that allegation in writing within fifteen (15) calendar days of the date the copy of the recording was provided.  The written allegation along with the copy of the recording and a copy of the written medical report received by the injured worker must be provided to the Division’s Customer Service Unit.  A copy of the written allegation shall also be provided to the examining physician and the employer/insurer.  Within ten (10) days of the allegation being provided to the employer/insurer, the employer/insurer may file a response to the injured worker’s allegation with the Division’s Customer Service Unit.  Failure to raise an allegation in a timely manner results in the injured worker having waived the right to raise any allegations of confidentiality in the recording.  
(G)	Only medical information that is not discussed in the written report generated by the physician as a result of the independent medical examination may be raised pursuant to paragraph (F) above.  This limitation does not impact the injured worker’s ability to challenge any aspect of the written report.  
(H)	A written allegation from an injured worker that the recording contains medical information that should remain confidential must provide a sufficient level of detail.  A sufficient level of detail exists if the written statement provides general information as to what medical information was communicated that should remain confidential, and why the information should remain confidential within the context of the workers’ compensation claim.  Raising medical issues contained in the report, or failing to provide sufficient detail shall result in a summary denial of the allegation by an ALJ.        
(I)	If no timely allegation regarding confidential information pursuant to paragraph (F) is made, the employer/insurer may then request a copy of the recording by providing a written request to the examining physician, explaining that no allegation was made by the injured worker and a copy of the recording may be released to the employer/insurer. A $20 payment to the examining physician shall be included with this request.  The examining physician shall provide a copy of the recording within fifteen (15) calendar days of the date the written request is received.
(J)	If the injured worker alleges that the recording contains confidential medical information as set out in paragraph (F) of this rule, the employer/insurer shall not request a copy of the recording until the allegation is resolved.
(K)	If the Division receives an allegation pursuant to paragraph (F), the Division will submit the recording, a copy of the written medical report, the injured worker’s allegation and any response from the employer/insurer to an Administrative Law Judge either in the Prehearing Unit or the Office of Administrative Courts.
(L)	An Administrative Law Judge shall consider the injured workers’ allegations and any response, listen to the recording in camera if necessary, and determine if the recording contains confidential medical information not relevant to the claim.
(M)	If an Administrative Law Judge determines that the recording does not contain confidential medical information, the Administrative Law Judge will issue an appropriate order and return the recording to the injured worker.  The employer/insurer may then request a copy of the recording within twenty (20) days of the date the order was issued by providing a written request, along with $20 payment to the examining physician.  The examining physician shall provide a copy of the recording to the employer/insurer within fifteen (15) days calendar days of the date the written request is received.
(N)	If an Administrative Law Judge determines that the recording contains confidential medical information, the Administrative Law Judge shall issue an order to the parties and the examining physician.  The Administrative Law Judge shall then produce, or cause to be produced, a copy of the recording with the confidential medical information redacted.  An order to redact information does not constitute a final decision as to the relevancy of that information in any future proceeding.  The Administrative Law Judge will provide the original recording and the redacted recording to the Division’s Customer Service Unit.  The Division will maintain the copy of the original and redacted recording until the claim is closed.  Either party may obtain a copy of the redacted recording by providing a written request, along with payment of $10, to the Division.
(O)	If paragraph (N) applies and for any reason the Administrative Law Judge is unable to redact the recording, the Administrative Law Judge will issue an order that copies of the recording may not be released and will provide the copy of the original recording to the Division’s Customer Service Unit.  If necessary an Administrative Law Judge may thereafter review the recording in camera to assist in resolving factual disputes that may arise.

8-12	MAINTENANCE OF THE RECORDINGS

(A)	Absent an order to the contrary, the examining physician may destroy the recording twelve (12) months after the date the examining physician’s written report was issued.
(B)	Any recording in the possession of the Division may be destroyed once the claim is closed. 
    
8-13	DISPUTES

If a dispute arises, such as, the examination was not recorded, or if the recording is inaudible, the parties may file a motion with an Administrative Law Judge if they cannot agree on a resolution.  Each dispute will be considered individually and determined based upon the specific facts in existence so that the Administrative Law Judge may fashion an appropriate remedy.  Generally, the striking of the IME report will be the appropriate remedy. If the examining physician was responsible for the faulty or inaudible recording, the examining physician may be required to repeat the examination without additional payment.  If another party was responsible for a faulty or inaudible recording that party may be required to pay for a repeat examination.