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Misconceptions About IMEs In New Jersey Workers’ Comp

By on December 21, 2016 in Compensability with 0 Comments

There are a number of misconceptions about the rules on independent medical examinations.  Several provisions in the New Jersey Workers’ Compensation Act are helpful in clarifying these misconceptions:

  • Misconception One: An employer must set up an IME in the county where the employee resides.  Section 19 states that an IME may be arranged at any reasonable location within the state.  There is no limitation to the employee’s county of residence.
  • Misconception Two: An employee may have his lawyer present during the examination. Section 19 states than an employee only has the right to have his or her personal physician present.
  • Misconception Three: An employee may apply for mileage for travel to an IME. There is no statute or rule in New Jersey which requires that employers pay mileage for IMEs, even to those who travel from out of state back to New Jersey.
  • Misconception Four: An employee cannot object to an IME performed by a physician of the opposite sex. Section 68 states that where a physical examination is taking place, an employee may request an exam by a physician of the same sex. If such a request is made, the statute says that the employer “shall” comply.
  • Misconception Five: An employer is limited to only one IME during the case. Section 19 states that an employee may be required to attend an examination “as often as may be reasonably requested.”
  • Misconception Six: An employee is entitled to one missed IME before benefits are stopped. Section 19 states that during the period that the employee refuses to participate in attending examinations, the employer can terminate all workers’ compensation benefits.
  • Misconception Seven: An employer can make a voluntary offer within 26 weeks of MMI or return to work but the percentage of the offer must correspond to the estimate of the defense IME. Case law makes clear that an employer is not required to limit the bona fide or voluntary offer to the same percentage as respondent’s IME.  In fact, there is no requirement at all that an IME be done for an employer to make a voluntary offer of partial permanent disability.
  • Misconception Eight: After an IME, the physician must provide a copy of the report to the injured worker. The rules of the New Jersey Medical Society make clear that there is a difference between a patient and an examinee.  An independent medical examination occurs when there is no expectation of treatment and therefore no doctor/patient relationship. In that case, the injured worker is an examinee, not a patient, and has no right to a copy of the report that the defense IME expert prepares for the employer or carrier.  The report is the property of the employer/carrier.  During litigation of a formal claim petition, the parties must exchange independent medical exams at the pretrial stage of the case.
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John H. Geaney

About the Author

About the Author:

John H. Geaney, an executive committee member and shareholder with Capehart Scatchard, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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