Employers and their insurance companies can require injured workers to submit to an independent medical examination, also known as an IME or section 12 exam, to determine the nature, extent, and probable duration of the injury.
Following the exam, the employer’s doctor will author a report and offer their expert opinion on issues such as:
- accident (mechanism of injury)
- causation (pre-existing condition)
- reasonable and necessary medical treatment
- temporary or permanent work restrictions (work status)
IME’s are governed by section 12 of the Illinois Workers’ Compensation Act, which provides:
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 purpose 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.
Employers are required to provide notice of the IME and pay for travel, food, and lost wages before it takes place:
An employer requesting such an examination, of an employee residing within the State of Illinois, shall deliver to the employee with the 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 meals necessary 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 daily wage.
Employers are able to force the injured worker to undergo the IME by withholding benefits if they refuse:
If the employee refuses so to submit himself to examination or unnecessarily obstructs the same, his right to compensation payments shall be temporarily suspended until such examination shall have taken place, and no compensation shall be payable under this Act for such period.
The employer’s right to force an examination under section 12 does not extend to a functional capacity evaluation (FCE). FCE’s test an injured worker’s ability to work by objectively measuring their strength, endurance, speed, flexibility, and physical effort and comparing the results to job descriptions. W.B. Olson, Inc. v. Illinois Workers’ Compensation Commission, 2012 IL App (1st) 113129WC (“neither section 12 nor section 19(c) of the Act provides statutory authority for the assertion that either an employer or the Commission may require a claimant to submit to an evaluation by a physical therapist”) Google Scholar | Illinois Courts PDF.
Employers are required to provide claimants with copies of reports:
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 later 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 by 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.
Section 12 of the Illinois Workers’ Occupational Diseases Act is nearly identical to section 12 of the Workers’ Compensation Act with a few notable exceptions. 820 ILCS 310/12 Illinois General Assembly. First, the Occupational Diseases Act does not contain the so-called 48 hour rule. While copies of reports under the Workers’ Compensation Act must be delivered “as soon as practicable but not later than 48 hours before the time the case is set for hearing,” the Occupational Diseases Act merely provides that they are to be furnished “as soon as practicable but not later than the time the case is set for hearing.” 820 ILCS 310/12(a) Illinois General Assembly.
More importantly, however, section 12(b) of the Workers’ Occupational Diseases Act provides a special rule for autopsies that is entirely absent from the Workers’ Compensation Act. 820 ILCS 310/12(b) Illinois General Assembly. This rule provides that the Commission may order an autopsy in cases of death due to the inhalation of silica or asbestos dust:
Whenever, after the death of an employee, any party in interest files an application for adjustment of claim under this Act, and it appears that an autopsy may disclose material evidence as to whether or not such death was due to the inhalation of silica or asbestos dust, the commission, upon petition of either party, may order an autopsy at the expense of the party requesting same, and if such autopsy is so ordered, the commission shall designate a competent pathologist to perform the same, and shall give the parties in interest such reasonable notice of the time and place thereof as will afford a reasonable opportunity to witness such autopsy in person or by a representative.
It shall be the duty of such pathologist to perform such autopsy as, in his best judgment, is required to ascertain the cause of death. Such pathologist shall make a complete written report of all his findings to the commission (including laboratory results described as such, if any). The said report of the pathologist shall contain his findings on post-mortem examination and said report shall not contain any conclusion of the said pathologist based upon the findings so reported.
Said report shall be placed on file with the commission, and shall be a public record. Said report, or a certified copy thereof, may be introduced by either party on any hearing as evidence of the findings therein stated, but shall not be conclusive evidence of such findings, and either party may rebut any part thereof.
820 ILCS 310/12(b) Illinois General Assembly.
Section 12(b) also includes the following provision, which is somewhat different from the preceding three paragraphs:
Where an autopsy has been performed at any time with the express or implied consent of any interested party, and without some opposing party, if known or reasonably ascertainable, having reasonable notice of and reasonable opportunity of witnessing the same, all evidence obtained by such autopsy shall be barred upon objection at any hearing. This paragraph shall not apply to autopsies by a coroner’s physician in the discharge of his official duties.
820 ILCS 310/12(b) Illinois General Assembly. In Freeman United Coal Mining Company v. Industrial Commission, 308 Ill. App. 3d 578 (1999) Google Scholar | Illinois Courts, the employer challenged an autopsy report where it was not given notice of the autopsy. The autopsy report concluded that the employee had coal worker’s pneumoconiosis, which contributed to his death. The employer argued that rule allowing autopsies to be witnessed by opposing parties was not limited to cases of silica or asbestos dust inhalation. While the Appellate Court agreed that “by its language, logic, and common sense, paragraph four relates to a somewhat different subject than the first three paragraphs of section 12(b),” it affirmed the Commission’s interpretation that the rule only applies to silica and asbestos dust inhalation autopsies.
King v. Industrial Commission, 189 Ill. 2d 167 (2000) (injured worker previously awarded permanent total disability benefits for life required to submit to independent medical examinations because such benefits may be modified if the worker has or is able to return to work) Google Scholar | Illinois Courts.
Grabs v. Safeway, Inc., 395 Ill. App. 3d 286 (2009) (in a separate retaliatory discharge lawsuit, “when an employer is faced with conflicting medical opinions from the employee’s doctor and the employer’s IME, an employer may not rely solely on an IME in terminating an employee for failing to return to work or for failing to call in his absences) Google Scholar | Illinois Courts PDF.
USF Holland, Inc. v. Industrial Commission, 357 Ill. App. 3d 798 (2005) (Employers generally can avoid penalties for nonpayment of benefits when they have an IME disputing the claim: “When the employer acts in reliance upon reasonable medical opinion or when there are conflicting medical opinions, penalties ordinarily are not imposed.”) Google Scholar | Illinois Courts.
Mulligan v. Illinois Workers’ Compensation Commission, (“We now give the term ‘hearing’ its plain and ordinary meaning and hold that compliance with section 12 of the Act dictates that the proponent of medical testimony provide the other party with the required medical reports 48 hours before evidence is presented on the first day of the arbitration hearing.”) Google Scholar | Illinois Courts PDF.
W.B. Olson, Inc. v. Illinois Workers’ Compensation Commission, 2012 IL App (1st) 113129WC (“As the claimant correctly points out, section 12 of the Act is the only statutory provision permitting an employer to require a claimant to submit to any type of medical evaluation.”) Google Scholar | Illinois Courts PDF.