BILL REQ. #:  H-0918.2 

Read first time 01/22/2007.   Referred to Committee on Commerce & Labor.

     AN ACT Relating to injured worker medical rights; amending RCW 51.04.050, 51.36.060, 51.32.110, 51.36.070, and 51.32.112; adding a new section to chapter 51.52 RCW; adding a new section to chapter 51.36 RCW; creating a new section; recodifying RCW 51.32.112; repealing RCW 51.32.114; and prescribing penalties.

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

Sec. 1   RCW 51.04.050 and 1961 c 23 s 51.04.050 are each amended to read as follows:
     In all hearings, actions or proceedings before the department or the board of industrial insurance appeals, or before any court on appeal from the board, any physician having theretofore examined or treated the claimant may be required to testify fully regarding such examination or treatment, and shall not be exempt from so testifying by reason of the relation of physician to patient.
     Nothing in this section shall be construed to allow ex parte contact in violation of section 3 of this act.

Sec. 2   RCW 51.36.060 and 1991 c 89 s 3 are each amended to read as follows:
     (1) Except as provided in section 3 of this act, physicians examining or attending injured workers under this title shall comply with rules and regulations adopted by the director, and shall make such reports as may be requested by the department or self-insurer upon the condition or treatment of any such worker, or upon any other matters concerning such workers in their care. Except under RCW 49.17.210 ((and)), 49.17.250, and section 3 of this act, all medical information in the possession or control of any person and relevant to the particular injury in the opinion of the department pertaining to any worker whose injury or occupational disease is the basis of a claim under this title shall be made available ((at any stage of the proceedings)) to the employer, the claimant's representative, and the department upon request, and no person shall incur any legal liability by reason of releasing such information.
     (2) Any time that an examining or attending physician or licensed advanced registered nurse practitioner is contacted by the employer, or a representative of the employer, a written report must be generated by the person or entity initiating contact which fully discloses all subjects discussed and responses given. This report must be completed within five days of the meeting, and a copy must be mailed to the worker no later than the fifth day. Failure to comply with this section constitutes a violation of RCW 51.48.080 and the penalty shall be paid to the worker.
     (3) In any circumstance in which an attorney, vocational counselor, nurse case manager, or other representative of the employer seeks to meet with an examining or attending physician or licensed advanced registered nurse practitioner to discuss the worker's physical capacities, medical treatment, permanent partial disability, ability to work, or other issues pertaining to the claim, that person shall give at least seven days' prior written notice to the worker or the worker's designated representative. The worker and representative have the right to attend and participate in the conference. The party scheduling the meeting shall make reasonable efforts to coordinate the scheduling of the appointment for the convenience of all parties. Within five days of the completion of the meeting, the employer or representative shall create a complete report of the meeting, including all questions asked and information provided. A copy of this report must be mailed to the worker or the worker's designated representative, no later than the fifth day following the meeting.

NEW SECTION.  Sec. 3   A new section is added to chapter 51.52 RCW to read as follows:
     (1) Once an appeal has been filed with the board, the department and the employer, as well as the representatives of each, may not have ex parte contact, to discuss the facts or issues in question in the appeal, with any medical provider who has provided treatment to the claimant unless written authorization for such contact is given by the claimant or the claimant's representative. This also applies to medical providers who examined the claimant for consultative purposes at the request of either the claimant or a treating medical provider unless the examination request was initiated by the department.
     (2) Subsection (1) of this section does not apply if, in confirming witnesses, the claimant does not name the medical provider for the hearings.
     (3) Once an appeal has been filed with the board, the claimant and the representative for the claimant, if any, may not have ex parte contact, to discuss the facts or issues in question in the appeal, with any medical provider who examined the claimant for an independent medical examination at the request of the department or the self-insured employer unless they first receive written authorization for such contact from the department or self-insured employer.
     (4) Subsection (3) of this section does not apply if, in confirming the names of their witnesses, the department and the self-insured employer, if any, do not name the provider as a witness for the hearings.
     (5) This section does not limit the ability of the claimant, the employer, or the department to contact medical providers for claims' administration on issues not before the board.

Sec. 4   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. 5   RCW 51.36.070 and 2001 c 152 s 2 are each amended to read as follows:
     (1) Whenever a medical examination is conducted under this title, the worker may be accompanied by a person who may observe the examination. 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 at a place reasonably convenient for the worker and as may be provided by department rules, order a worker ((shall)) to submit to examination ((by a physician or physicians selected by the director, with the rendition of a report to the person ordering the examination)). 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 ordered may be required to submit to an examination at any location in the United States determined by the department or self-insurer.
     (3)(a) When ordering a medical examination under this section, 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 treating provider conduct an examination and make a report on the medical issue in question.
     (b) If the medical issue is not resolved by the requested examination and report, the department or self-insurer shall 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, where appropriate. The consulting provider shall conduct an examination and make a report on the medical issue in question.
     (c) If the worker's attending physician or treating provider is unwilling or unable to conduct the examination or to make a consultation referral, as requested by the department or self-insurer, the department or self-insurer may order a medical examination conducted by the provider who is listed next on the rotating list of providers established and maintained by the department under RCW 51.32.112 (as recodified by this act), as appropriate, and who is licensed to practice in the same field or specialty as the worker's attending physician or treating provider.
     (4)(a) A provider conducting a medical examination under this section must submit a report to the department or self-insurer and, on the same day that the report is submitted, submit a copy of the report to the worker, the worker's representative, and the worker's attending physician.
     (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) The department or self-insurer shall provide the physician performing an examination with all relevant medical records from the worker's claim file.
     (6) The director, in his or her discretion, may charge the cost of such examination or examinations to the self-insurer or to the medical aid fund as the case may be. The cost of said examination shall include payment to the worker of reasonable expenses connected therewith.

Sec. 6   RCW 51.32.112 and 1993 c 515 s 4 are each amended to read as follows:
     (1) The department must establish and maintain a rotating list of providers approved to conduct examinations ordered under this title.
     (2) 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 provider, where appropriate, with an active practice involving direct patient care at least weekly in that field or specialty; 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 submit to deposition, appear before, testify, 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))) (3) Within the appropriate scope of practice, chiropractors licensed under chapter 18.25 RCW may conduct special medical examinations to determine permanent disabilities 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))) (4) 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.
     (5) 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))) (6) 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. 7   RCW 51.32.112 is recodified as a section in chapter 51.36 RCW.

NEW SECTION.  Sec. 8   RCW 51.32.114 (Medical examination--Department to monitor quality and objectivity) and 1988 c 114 s 3 are each repealed.

NEW SECTION.  Sec. 9   This act applies to all medical examinations ordered under Title 51 RCW on or after the effective date of this act.