Navigating an Independent Medical Exam Pursuant to Section 12 of The Illinois Workers Compensation Act

Section 12 of the Illinois Workers’ Compensation Act 820ILCS305/12 provides as follows:

“An employee entitled to receive disability payments shall be required, if requested by the employer, to submit himself, at the expense of the employer, for examination to a duly qualified medical practitioner or surgeon selected by the employer, at any time and place reasonably convenient for the employee, either within or without the state of Illinois, for the purposes of determining the nature, extent, and probable duration of the injury received by the employee, and for the purpose of ascertaining the amount of compensation which may be due the employee from time to time for disability according to the provisions of this act. An employee may also be required to submit himself for examination by medical experts under Section C of Section 19.

An employer requesting such an examination, of an employee residing within the state of Illinois, shall deliver to the employee with a notice of the time and place of examination sufficient money to defray the necessary expense of travel by the most convenient means to and from the place of examination, and the cost of mealsnecessary during the trip, and if the examination or travel to and from the place of examination causes any loss of working time on the part of the employee, the employer shall reimburse him for such loss of wages upon the basis of his average weekly wage. Such examination shall be made in the presence of a duly qualified medical practitioner or surgeon provided and paid for by the employee, if such employee so desires.

In all cases where the examination is made by a surgeon engaged by the employer, and the injured employee has no surgeon present at such examination, it shall be the duty of the surgeon making the examination at the instance of the employer to deliver to the injured employee, or his representative, a statement in writing of the condition and extent of the injury to the same extent that said surgeon reports to the employer and the same shall be an exact copy of that furnished to the employer, said copy to be furnished the employee, or his representative, as soon as practicable, but not late than 48 hours before the time the case is set for hearing. Such delivery shall be made in person, either to the employee or his representative, or be registered mail to either and the receipt of either shall be proof of such delivery. If such surgeon refuses to furnish the employee with such statement to the same extent as that furnished the employer, said surgeon shall not be permitted to testify at the hearing next following said examination.

If the employee refuses to submit himself to examination or unnecessarily obstructs the same, his right tocompensation payment shall be temporarily suspended until such examinations shall have taken place, and no compensation shall be payable under this act for such period.

In all cases where the examination is made by a surgeon engaged by the injured employee and the employer has no surgeon present at such examination, it shall be the duty of the surgeon making the examination at the instance of the employee to deliver to the employer, or his representative, a statement in writing of the condition and extent of the injury to the same extent that said surgeon reports to the employee and the same shall be an exact copy of that furnished to the employee, said copy to be furnished to the employee, or his representative, as soon as practicable but not later than 48 hours before the time the case is set for hearing. Such delivery shall be made in person, either to the employer or his representative, or by registered mail to either and the receipt of either shall be proof of such delivery. If such surgeon refuses to furnish the employer with such statement to the same extent as that furnished the employee, said surgeon shall not be permitted to testify at the hearing next following said examination.”

The process of submitting to a Section 12 exam by an employer or its insurance company begins with receiving notice of theindependent medical exam. This notice shall be provided to the injured worker a reasonable time period prior to the exam and shall provide the name and address of the examining physician so that the injured worker can attend the examination. Frequently the notice of independent medical examination, pursuant to Section 12 of the Illinois Workers’ Compensation Act, will request that theinjured party furnish all their related medical records and diagnostic exams including x-ray and MRI results. It is important to remember that according to Section 12 of the Act, the employer or its insurance company should go to all the expense of furnishing the section 12 documentation to its examining physician. That means that an injured party does not have to scramble to obtain medical documentation and bare the expense of that medical documentation production because Section 12 clearly lays out that the party requesting the examination should pay for it. The injured party should not be alarmed by that request. His or her attorney should simply tell the employer or its insurance company that, since the exam has been requested by the employer, it should provide the records. Please also be advised that if the exam takes places a good distance away from the injured worker’s home, the employer must pay mileage and other reasonable expenses for him/her to attend the exam. This may include the cost of a taxi, or other means if the injured worker is unable to drive to the exam.

While an injured employee may find  attending a Section 12 exam excessive in light of the fact that he/she may be seeing multiple treating doctors of their own, an injured employee should make every reasonable attempt to be available and attend the appointment his/her employer made for them pursuant to Section 12. This is because the employer, or its insurance company, may withhold compensation payments for failure to attend the appointment. If, due to a reasonable conflict, the injured employee cannot attend the appointment, it is imperative that the employee notify their employer’s insurance company that they are unable to attend the meeting with the examining doctor so that the meeting can be rescheduled, and so the employer cannot claim that the employee refused to attend.

In addition to remembering to attend the exam, it is also important for the injured party to arrive on time, or maybe a little bit early. There is often some paperwork to fill out and if the employee is late for the exam, it will surely be noted by the examining physician in their subsequent report. The injured party should fill out the paperwork as accurately as possible because any discrepancy that the examining physician notices between the medical records that have been provided and the documentation the worker fills out prior to the exam will surely be noted. In addition, it is very important that the injured worker remain open and friendly to the examining physician even if the physician makes the worker wait in his or her office for a significant period before examining them. Any adversarial tone or refusal to be open to the examining physician will be noted in the report. They will likelynot mention, the fact that the worker had to wait in their office for a significant amount of time prior to the exam beginning.

Once the appropriate paperwork is filled out, there are several things the injured worker will want to keep track of. First, there is the amount of time the examining physician actually meets with the injured worker. If the examining physician, at some later point, issues an opinion that is in the interest of the employer, (which is usually the case, as the doctor will remember who is paying for the exam) the case will likely become a battle of experts, meaning the treating physician may have the opinion that the injurieswere due to the workplace accident or injury and the examining physician believes they were not caused by the workplace accident or injury. The employee will obviously want the arbitrator who decides the case to side with the treating physician over the examining Section 12 physician. If the Section 12 examining physician only meets with the injured worker for 2-3 minutes and thenissues a report against them, that would be helpful to tell the injured worker’s attorney who will, at some point, be cross-examining this person as to his/her opinions.

It is also important to note the full scope of the exam that the examining physician performs on the injured worker. If the examining physician only asks a series of brief questions then leaves the room, the arbitrator will likely give the that opinion less weight than an examining physician that conducts a thorough and objective physical exam.

Finally, it is important for the injured worker to report back to his or her attorney the time and details of the independent medicalexam as soon as possible after the exam while it is fresh in his/her memory. All the information will help the attorney cross-examine the examining physician if the examining physician’s opinions do not favor the injured worker’s case.

In addition to the tips provided in this blog post, the attorneys at Wolter, Beeman, Lynch, & Londrigan can give you specific advice navigating the independent medical exam process. If you have been injured at work or have any questions regarding a Section 12 independent medical exam, please feel free to contact our office at 217-753-4220.