BILL REQ. #:  H-0748.2 

Read first time 01/31/2003.   Referred to Committee on Commerce & Labor.

     AN ACT Relating to medical examinations under the industrial insurance system; amending RCW 51.32.110, 51.36.070, and 51.32.112; adding a new section to chapter 51.36 RCW; creating a new section; recodifying RCW 51.32.112; and repealing RCW 51.32.114.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 51.32.110 and 1997 c 325 s 3 are each amended to read as follows:
     (1) Any worker entitled to receive any benefits or claiming such under this title shall, if requested by the department or self-insurer, submit himself or herself for medical examination((, at a time and from time to time, at a place reasonably convenient for the worker and as may be provided by the rules of the department. An injured worker, whether an alien or other injured worker, who is not residing in the United States at the time that a medical examination is requested may be required to submit to an examination at any location in the United States determined by the department or self-insurer)) as authorized in RCW 51.36.070.
     (2) If the worker refuses to submit to medical examination, or obstructs the same, or, if any injured worker shall persist in unsanitary or injurious practices which tend to imperil or retard his or her recovery, or shall refuse to submit to such medical or surgical treatment as is reasonably essential to his or her recovery or refuse or obstruct evaluation or examination for the purpose of vocational rehabilitation or does not cooperate in reasonable efforts at such rehabilitation, the department or the self-insurer upon approval by the department, with notice to the worker may suspend any further action on any claim of such worker so long as such refusal, obstruction, noncooperation, or practice continues and reduce, suspend, or deny any compensation for such period: PROVIDED, That the department or the self-insurer shall not suspend any further action on any claim of a worker or reduce, suspend, or deny any compensation if a worker has good cause for refusing to submit to or to obstruct any examination, evaluation, treatment or practice requested by the department or required under this section.
     (3) If the worker necessarily incurs traveling expenses in attending the examination pursuant to the request of the department, such traveling expenses shall be repaid to him or her out of the accident fund upon proper voucher and audit or shall be repaid by the self-insurer, as the case may be.
     (4)(a) If the medical examination required by this section causes the worker to be absent from his or her work without pay:
     (i) In the case of a worker insured by the department, the worker shall be paid compensation out of the accident fund in an amount equal to his or her usual wages for the time lost from work while attending the medical examination; or
     (ii) In the case of a worker of a self-insurer, the self-insurer shall pay the worker an amount equal to his or her usual wages for the time lost from work while attending the medical examination.
     (b) This subsection (4) shall apply prospectively to all claims regardless of the date of injury.

Sec. 2   RCW 51.36.070 and 2001 c 152 s 2 are each amended to read as follows:
     (1) When a medical examination is conducted under this title:
     (a) The examination must be conducted at a medical facility suitable for the examination and reasonably convenient for the worker;
     (b) The examination must be conducted with due regard and respect for the privacy and dignity of the injured worker and for the safety and convenient access of the worker; and
     (c) The worker may be accompanied by a person who may observe the examination but not interfere with or obstruct the examination. The worker or person accompanying the worker may, at the worker's expense, make an audio and video recording of the examination, if the recording is made in an unobtrusive manner. This section does not limit the department or self-insurer's obligation to provide necessary interpreter services.
     (2) Subject to subsection (3) of this section, whenever the director or the self-insurer deems it necessary in order to resolve any medical issue, the department or self-insurer may, at a time and from time to time and as may be provided by department rules, order a worker ((shall)) to submit to examination by a ((physician or physicians selected)) provider or providers approved by the director((, with the rendition of a report to the person ordering the examination)) and competent to examine the worker and evaluate the injury or disease from which the worker suffers. An injured worker who is not residing in the United States at the time that a medical examination is ordered may be required to submit to an examination at a suitable medical facility in the United States as determined by the department or self-insurer.
     (3)(a) When ordering a medical examination, the department or self-insurer must first request in writing, with a copy of the request submitted to the worker and the worker's representative, if any, that the worker's attending physician or other treating provider conduct an examination and make a report on the medical issue in question. The attending physician or treating provider may, without prior authorization from the department or self-insurer, make a consultation referral to a provider licensed to practice in the same field or specialty as the attending physician or treating provider, as relevant. The consultant shall conduct the examination and make a report to the provider requesting the examination.
     (b) If the medical issue is not resolved by the requested examination and report, the department or self-insurer may request the attending physician or treating provider to make a consultation referral to a provider approved by the director and licensed to practice in the same field or specialty as the worker's attending physician or treating provider, as relevant.
     (c) If the worker's attending physician or treating provider is unwilling or unable to conduct the examination or make a consultation referral, as requested by the department or self-insurer, the department or self-insurer may order a medical examination by a provider or providers agreed upon by the worker and the department or self-insurer.
     (d) To resolve a material dispute regarding treatment or diagnosis between the attending physician or treating provider and a consulting provider, the department or self-insurer may order a medical examination to be conducted by a provider that the injured worker chooses from a list of at least five providers submitted by the department or self-insurer to the worker.
     (4)(a) A provider conducting a medical examination ordered under this section must submit a report to the department or self-insurer as the case may be and, on the same day that the report is submitted, submit a copy of the report to the worker, the worker's representative, if any, the worker's attending physician, and the worker's employer.
     (b) If the department or self-insurer relies on the examination report to deny, limit, or terminate benefits to a worker, the department or self-insurer must give the workers' attending physician no less than thirty days from the physician's receipt of the report to provide a written response to the report.
     (5) In resolving a medical issue under this title, the department or self-insurer must:
     (a) Base the decision only on medical opinion that is founded on factual data supported by the evidence; and
     (b) Give special consideration to the medical opinion of the worker's attending physician or treating provider rather than to the opinion of a provider who has examined, but not treated, the worker.
     (6) The department or self-insurer shall provide the physician performing an examination with all relevant medical records from the worker's claim file.
     (7) The director, in his or her discretion, may charge the cost of ((such)) a medical examination or examinations ordered under this title to the self-insurer or to the medical aid fund as the case may be. The cost of ((said)) the examination shall include payment to the worker of reasonable expenses connected ((therewith)) with the examination as provided in RCW 51.32.110.
     (8) For the purposes of this section, "medical issue" includes all questions within the expertise of the provider, including but not limited to cause of the injury or disease, establishment of diagnoses, the course of or need for treatment, the condition of the worker and whether the condition is fixed and stable, limitations on return-to-work activities, review of job analyses, and assessment of permanent disability.

Sec. 3   RCW 51.32.112 and 1993 c 515 s 4 are each amended to read as follows:
     (1) The department shall ((develop standards for)) adopt rules governing the conduct of ((special)) medical examinations ((to determine permanent disabilities)) ordered under this title, including, but not limited to:
     (a) The qualifications of persons conducting the examinations. To conduct an examination, a provider must, at a minimum, be licensed to practice at the time of the examination:
     (i) In the same field or specialty as the worker's attending physician or treating provider, as relevant, with an active practice involving direct patient care at least weekly in that field or specialty. This requirement may be waived by mutual agreement between the worker and the department or self-insurer; and
     (ii) Medicine or surgery under chapter 18.71 RCW, osteopathic medicine and surgery under chapter 18.57 RCW, podiatric medicine and surgery under chapter 18.22 RCW, dentistry under chapter 18.30 RCW, chiropractic under chapter 18.25 RCW, or psychology under chapter 18.83 RCW;
     (b) The criteria for removing examiners from the list of approved examiners, including but not limited to the department determining after reasonable investigation that the provider:
     (i) Committed professional or other misconduct, including a violation of RCW 51.48.280, or demonstrated incompetency in connection with providing medical examinations under this title;
     (ii) Exceeded the limits of his or her professional competence in conducting medical examinations or made materially false statements regarding his or her qualifications in his or her application as an examiner;
     (iii) Failed to transmit copies of medical reports, or failed to submit full and truthful medical reports of his or her findings, as required by this title;
     (iv) Knowingly made a false statement or representation as to a material fact in any medical report made under this title or in testifying or otherwise providing information for the purposes of this title; or
     (v) Refused to appear before, testify, submit to deposition, or answer a material question of the department, or board of industrial insurance appeals, or produce a material document concerning his or her provision of services under this title;
     (((b))) (c) The criteria for conducting the examinations, including guidelines for the appropriate treatment of injured workers during the examination; and
     (((c))) (d) The content of examination reports, including a requirement that examination reports contain a signed statement certifying that the report is a full and truthful representation of the examiner's professional opinion with respect to the injured worker's condition.
     (2) Within the appropriate scope of practice, chiropractors licensed under chapter 18.25 RCW may conduct special medical examinations to determine permanent disabilities under RCW 51.32.055 in consultation with physicians licensed under chapter 18.57 or 18.71 RCW. The department, in its discretion, may request that a special medical examination be conducted by a single chiropractor if the department determines that the sole issues involved in the examination are within the scope of practice under chapter 18.25 RCW. However, nothing in this section authorizes the use as evidence before the board of a chiropractor's determination of the extent of a worker's permanent disability if the determination is not requested by the department.
     (3) The department must examine the credentials of providers conducting medical examinations ordered under this title and must monitor the quality and objectivity of the examinations and examination reports obtained by the department and self-insured employers. The department's rules must ensure that examinations ordered under this title are performed only by qualified providers meeting department standards.
     (4) The department shall investigate the amount of examination fees received by persons conducting ((special)) medical examinations ((to determine permanent disabilities)) ordered under this title, including total compensation received for examinations of department and self-insured claimants, and establish compensation guidelines and compensation reporting criteria.
     (((4))) (5) The department shall investigate the level of compliance of self-insurers with the requirement of full reporting of claims information to the department, particularly with respect to medical examinations, and develop effective enforcement procedures or recommendations for legislation if needed.

NEW SECTION.  Sec. 4   RCW 51.32.112 is recodified as a new section in chapter 51.36 RCW.

NEW SECTION.  Sec. 5   RCW 51.32.114 (Medical examination--Department to monitor quality and objectivity) and 1988 c 114 s 3 are each repealed.

NEW SECTION.  Sec. 6   This act applies to all medical examinations ordered under Title 51 RCW on or after the effective date of this act.