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By Steven K Wellman Of Jenkins Fenstermaker, PLLC on 02/25/2021
An Update on Terminology on Medical Evaluations in West Virginia Workers’ Compensation Claims

On February 3, 2021, the West Virginia Offices of the Insurance Commissioner issued a bulletin regarding the terminology commonly used to refer to medical evaluations in workers’ compensation claims. Essentially, the commissioner is discouraging the use of the phrase “independent medical evaluation” for medical evaluations in West Virginia workers’ compensation claims. Instead, he seeks for employers, insurance carriers, and other claim administrators to use alternate language. Looking to existing language in WV workers’ compensation law is a great starting point for understanding the reason behind this bulletin.

Why the Commissioner is Addressing Medical Evaluations in West Virginia Workers’ Compensation Claims

WV workers’ compensation law is designed to protect employers from lawsuits based on work-related injuries and to ensure injured workers receive medical care for their injuries. The claim process gives the employer the right to validate the basis for a claim. In the early February bulletin, Commissioner James A. Dodrill expressed concern that terminology used in the process may be confusing to claimants. While the change is small, it broadly impacts claim validation procedures, which regularly include a medical exam requested by the employer or insurance carrier.

How a WV Workers’ Compensation Independent Medical Evaluation Fits in the Workers’ Compensation Claim Process

When an employee files a WV workers’ compensation claim, the employer has the right to verify the claim for benefits by requesting the employee undergo a physical exam. The medical care professional who performs this exam must be someone who has not been providing care to the employee. As a result, such an exam is regularly referred to as an independent medical examinations (IME).

Using a medical care professional not involved in the patient’s regular care is what renders the exam “independent,” but the West Virginia Insurance Commissioner has expressed concern that “independent medical examination” could be confusing to claimants. Because the employer or its insurance carrier or attorney requests the exam, it is not truly “independent” as the term may imply.

How WV Workers’ Compensation Law Refers to an Independent Medical Evaluation

Current West Virginia regulations use the phrase “independent medical evaluation,” such as in WV Code § 23-4-7a, and phrases such as “insurer’s physical examination of claimant” may be misleading in their own right. After all, the insurer is not the one conducting the examination as that phrase may imply in a strict application and reading of that language.

There is surely phraseology that will be satisfactory for all concerned. Employers could consider using the phrase “physical examination pursuant to WV Code § 23-4-8” or “medical examination pursuant to WV Code § 23-4-8” instead of “independent medical evaluation.” WV Code § 23-4-8 is the statute that gives claim administrators the right to schedule what were previously referred to as “independent medical evaluations,” and it actually uses the term “physical examination.”

Keeping Up with WV Workers’ Compensation Law

While this blog does not address substantive changes to WV workers’ compensation law, it does show just how quickly a material change can occur in other ways. Impacts can come from multiple directions, such as the effect of COVID-19 on workers’ compensation claims or even the potential establishment of an intermediate appellate court in WV. Employers have enough to handle without tracking shifts in workers’ compensation practice, procedure, and terminology.

Steve K. Wellman and his team of WV workers’ compensation lawyers at Jenkins Fenstermaker, PLLC have the depth and breadth of experience to protect your interests. Whether you need help regarding medical evaluations in West Virginia workers’ compensation claims or you’d like ongoing counsel and assistance, our workers’ compensation team can help. For a consultation, call (304) 523-2100 or complete the firm’s online contact form.