Do you have to attend an IME appointment?

No – you cannot be compelled to attend an independent medical examination (IME).

However, there are consequences for refusing to attend an IME. We’ll discuss these below.

How does an insurer have the authority to send me to an IME?

Under section 27 of the Workplace Injury Rehabilitation and Compensation Act 2013, the Victorian Workcover Authority or its agents (like DXC, Allianz, EML) can require a worker who has made a claim for compensation to submit at reasonable intervals to an examination by an IME.

The section also requires the VWA or agent to arrange and pay for the IME.

Who can be an IME?

While we aren’t going to cover this topic fully here, the following practitioners can potentially be IME’s: a medical practitioner (anyone registered under the Health Practitioner Regulation National Law to practise in the medical profession); or a registered dentist; registered physiotherapist; registered chiropractor; registered osteopath or registered psychologist.

An IME can only be approved by the VWA if they meet selection criteria and must sign a declaration confirming that they will abide the VWA service standards.

What are the consequences of refusing to attend an IME?

As we say above, no one can force you to attend an IME. The VWA, the agent and the employer aren’t going to make you attend by force.

What they do have at their disposal however is power given to them through s27 of the Act, which says:

(2)     If a worker unreasonably refuses to have, or unreasonably obstructs, an examination… —

(a)     any claim or proceedings commenced by or on behalf of the worker; and

(b)    the worker’s entitlement—

(i)     to compensation under this Act…;

are suspended until the examination takes place.

What does this mean in practice? The agent can stop paying for your medical and like expenses and weekly payments. Particularly in the case of weekly payments, this can be a big problem for an injured worker.

To make matters worse, if the worker later agrees to have the exam, the period of time between the refusal and the examination are still taken into account for the purposes of calculating any relevant time periods.

For example, most injured workers are entitled to 130 weeks of weekly payments. if there is a 10 week refusal period, the workers entitlement will be reduced down to 120 weeks. The other 10 weeks are forfeited.

What are reasonable intervals?

Reasonable intervals aren’t defined in the law. The VWA tells their agents to consider in the context of the amount of time between IME’s:

“the interval between examinations is in line with worker’s injury (type, circumstances, severity and stability)”

and

“the need for ‘independent’ medical information to manage liability and entitlement issues in the context of a worker’s recovery, rehabilitation and RTW strategy.”

Otherwise it is a matter of applying the facts of the situation and forming a position. More than one IME of the same specialty within a few months is very likely going to be considered to be unreasonable. Once you reach 6 months or more the argument becomes blurrier.

What is unreasonable refusal and unreasonable obstruction?

Unreasonable obstruction relates most commonly to the appointment itself. If a worker attended the appointment but refused to answer most questions, that would be unreasonable.

If an examiner is causing pain during any physical examination then it is reasonable to request that the physical examination stop. Common sense should be applied.

Unreasonable refusal to attend an IME is the harder question. For the most part it relates to whether there have been reasonable intervals between IMEs of the same type. For example, having an orthopaedic surgeon in January and then a psychiatrist in March is reasonable. But if it was two orthopaedic surgeons in three months, there would need to be a very good reason for it.

It is reasonable for a worker to request that they be medically examined by a doctor of the same gender. If this request was made to the insurer within a reasonable time and ignored, then there is a good argument to say that the IME appointment is not reasonable.

Other examples of unreasonable IME’s might be when an IME has examined a worker previously and the worker has complained of inappropriate conduct, where there is a known conflict of interest (such as the IME knows the worker outside of the context of the compensation claim).

The VWA also states “IME familiarity with worker can also support IME in providing opinion and enhance worker experience, eg the IME can comment on how the worker’s condition has changed over time.” This is an argument against potential ‘doctor shopping’ where an agent may be seeking another IME of the same speciality to provide a more favourable opinion.

How would you go about arguing that an IME appointment is unreasonable?

The first step is always notifying or discussing the issues with your case manager. If you can’t get hold of them or they don’t respond, try their customer care team.

If you can’t get a change in examiner or a cancellation of the IME altogether by asking, you might face a difficult choice. If you refuse to attend, you might put your entitlement to medical expenses and weekly payments at risk. If a worker is on weekly payments, it is generally advisable to attend the appointment if the agent wont cancel or change it.

We provide our clients with advice in these situations, which not every firm will do. If needed, we can make representations to the agent on our client’s behalf.