The 48 hour rule for workers’ comp in Illinois dictates that doctors performing an independent medical examination must give their report to both employee and employer as soon as is realistic. If the workers’ compensation case is due for an arbitration hearing, both parties must have received the medical report at least 48 hours before the set hearing time. The aim of the regulation is to prevent surprise medical testimonies that unfairly disadvantage petitioners (employees).
An independent medical examination (IME) occurs when employers or their insurance companies want an “independent” doctor to study the employee and better assess his or her possible workplace injury, its severity, the recovery duration, and other attributes. This doctor is not the same person employees go to after their injury and are not the employees’ treating doctor.
Employees must show up for these IMEs, but the employers are responsible for linked costs, such as wages the employees miss out on to attend the exam and most of the travel costs that employees incur.
Medical records are a critical part of IMEs. In fact, IME doctors typically spend more time reviewing records rather than examining the employees. Some IME doctors even make firm conclusions before having ever examined patients. At an IME appointment, the following things are typical.
Sometimes, the IME physicians say things such as, “There’s no workplace injury,” “You don’t have a disability,” and “You do not need treatment.” Doctors sometimes watch workers before the appointment when they walk from the car to the office, and do the same afterward. The doctors might incorrectly use the information they glean in these scenarios in the medical report.
Your workers’ compensation lawyer can help you prepare for the IME. Some tips to follow include these: Be honest, and do not exaggerate your injuries. For example, if the doctor touches you lightly, do not yelp and act like it hurts if it does not.
IME doctors may perform “tests” such as dropping their pens. They want to see if you unthinkingly pick a pen up or even merely look at it. Your body might make movements that are apparently “suspicious” in light of your case. A similar distraction test entails doctors assessing your movements without you realizing they are doing it. For instance, they can test your neck movements by walking in a circle behind you while talking.
Understanding the 48 Hour Rule for Workers’ Comp
Fairness is the idea behind the 48-hour rule. Because of the rule, IME doctors cannot work with employers, insurance companies, or others to spring a potentially extremely damaging medical report onto plaintiffs and their lawyers.
In the timeline of a workers’ compensation claim, the IME is supposed to be scheduled within 45 days of the first hearing. If the IME doctor agrees with the employee’s injury claim, the case is typically over. Insurance companies usually accept the claim.
If the IME doctor does not agree, the case could continue for many more months, even a year or more. The months to come would involve depositions, hearings, evidence, legal arguments, briefing schedules, and an arbitrator’s decision.
A lot of what occurs at the hearing and afterward is based on the content of the IME report. Time to prepare and review the evidence and address the IME report is fundamental to fairness. When you hire an attorney for your workers’ compensation case, ask about IMEs and estimated case timelines.
The 48 hour rule for workers’ comp does apply to the petitioner’s treating physicians. In reality, it is rarely necessary because treating doctors usually undergo depositions well in advance of hearings and give their opinions then. It is unusual for a treating doctor to testify live at an arbitration hearing. Conversely, it is more common (and used to be even more common) for IME physicians to not give their examination reports to the petitioner’s side in a timely fashion and then testify at hearings.
A party can waive the 48-rule, though. Parties often do so in situations where treating doctors’ testimonies on relatively minor matters such as the appropriateness of treatment are needed early in the case and the facts could change down the road.
One downside of the 48-hour rule is that, rather than being used for its intended purpose to prevent legal surprises, the parties sometimes use it to prevent the other side from developing and presenting new, legitimate medical evidence. Previous waivers can be helpful in these cases.
If a doctor’s IME report backs up an insurance company’s denial of a worker’s comp claim, then the injured petitioner likely gets no injury-related benefits and wage replacement while case litigation continues. That puts the worker at a steep disadvantage, especially financially. Insurance companies and lawyers know this. The potential huge disadvantages to the petitioner are a significant reason for the necessary fairness of the 48-hour rule.
Short-term disability benefits (and/or sometimes, long-term disability benefits), unemployment benefits, and another job are among the options some petitioners turn to make ends meet. Not everyone has these avenues open to them, though. If workers do eventually succeed with their claims, they might receive interest on money they would otherwise have already gotten.