May 19, 2017

Medical video recording provision creates tricky dispute

Among Vermont workers’ compensation lawyers, one of the most hotly debated issues of the past year has involved the clash between an employer’s right to neuropsychological testing and the injured worker’s right to video record all employer examinations.

Neuropsychological testing is an assessment of how someone’s brain is functioning, which includes an interview and the administration of a battery of tasks or questions by a neuropsychologist.

One of the requirements of valid neuropsychological testing is that it cannot be conducted with the presence of a third-party observer. Doing so is considered not only allowing an unknown variable that can affect testing, but a violation of the neuropsychologist’s professional ethics.

Even a video or audio recording of the actual testing compromises the test, they say.

Enter 21 V.S.A. § 655, the provision in the Vermont Workers’ Compensation Act that governs independent medical examinations. The statute gives the injured worker the right to make a video or audio recording of any examination performed by a medical professional hired by the employer. This has created what was an intractable dispute:

Faced with a request for neuropsychological testing, an injured worker’s attorney would simply give notice that they intended to video record the examination. No neuropsychologist will allow it, and so it was a surefire way to quash the examination.

From a defense perspective, it’s particularly troubling because it comes up in cases where it’s difficult if not impossible to otherwise evaluate the validity of the injured worker’s claim: traumatic brain injuries, depression, stress, whether pre-existing learning disabilities limit someone’s employability, and so on.

The latest Department of Labor decision on this issue, Goodrich v. Fletcher Allen Health Care, Opinion No. 07-17WC (April 14, 2017), finally acknowledges that the injured worker’s right to video record cannot be absolute if it would effectively deny the employer/carrier the right to an independent examination. The opinion makes clear, however, that this determination was not arrived at lightly.

Ruled against in another department decision almost exactly a year earlier, in order to prove the futility of its position the employer solicited all 10 neuropsychologists in New England to try to locate someone who would submit to having their testing of the injured worker captured on video. This time it was enough to convince the commissioner: “Short of barring Claimant from video recording the test portion of the exam, there is no way to safeguard the interests underlying Defendant’s right” and the defendant would “effectively be denied the right to test a central theory underlying (the Claimant’s) case in chief.” The commissioner found that the employer had established good cause for a protective order barring video recording by the injured worker, and further concluded that if the injured worker refused to submit to an examination, her right to prosecute her claim and/or receive ongoing disability benefits would be suspended.

It’s unclear at this time whether this decision will be appealed.

While the neuropsychological testing scenario is about as extreme as this issue gets, it is important for employers and carriers to be aware of and know how to respond when an injured worker exercises his or her right to record an independent medical examination. From a defense perspective, over the last few years we have seen a rise in the amount of video recording of examinations. This right first came into being in 2010. Prior to that, the law only gave the injured worker the right to have a physician or surgeon of their choice present at the defense medical examination at their own expense.

Since that time, the claimant’s attorneys bar has come to learn which doctors will refuse to have their exams video recorded. When they see one of those doctors come up in their cases they will simply send notice that they intend to record the exam in order to knock that doctor out. This has had the effect of causing the defense bar to think about their options for a doctor in terms of which ones are known to allow recording. When coupled with the rural nature of our state, limited medical community, and a 2013 revision to §655 that prevents employers from sending an injured worker for an examination outside of a two-hour driving radius from the worker’s home, this has had the effect of creating a narrow field of doctors on which employers can call.

The commissioner does have the discretion under the 2013 revision to permit an examination outside of the two-hour radius if it is necessary to obtain the services of a provider who specializes in the evaluation and treatment specific to the nature and extent of the employee’s injury, but it’s unclear whether such exceptions have been requested and how willingly they would be granted.

It should be noted that the workers’ compensation rules promulgated by the commissioner to help guide interpretation of the act do provide some limited safeguards for the employer and doctor. First, the claimant must give notice of intent to record at least three business days prior to the scheduled examination date to the employer. Second, if the injured worker’s position on a disputed issue relies in whole or in part on information gleaned from the recording, he or she must promptly provide an unedited copy to the employer. Additionally, an independent medical examiner has the right to audio record the examination as well, should he feel it is necessary, and does not need the injured worker’s consent or to provide notice any sooner than the outset of the examination. The doctor does not, however, have the right to make their own video recording.

For all the time, expense, and posturing regarding video recording, you might be surprised to hear that rarely does the video later factor into the adjudication of the claim. Still, it is important for employers to be aware of these provisions and the reality that this is another element that can drive up an employer’s costs due to the need for additional litigation and the limitations it imposes on doctor options.

Glenn S. Morgan is an attorney with Ryan Smith & Carbine in Rutland, where he is the supervising partner of the firm’s workers’ compensation group. Associate attorney Stephanie P. Romeo contributed to this column.

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