Workers' Comp Law

The Defense View

When the Injured Worker’s Right to Video Record Collides with the Expert Neuropsychologist’s Refusal to Allow it

The rule allowing injured workers to video record IMEs was passed, at least in part, to keep the examiner “honest”.   This was in response to allegations from the claimant’s bar of clients having been mistreated or intimidated by the examination process and/or by the examiner.  The rule actually benefits the already-honest examiner,  as a video recording can protect him or her from those baseless allegations of mistreatment.  But not every IME doctor loves the idea of being video recorded, and in the ordinary case if your expert refuses to allow the injured worker’s video camera, you need to find to find another expert that will.  In Goodrich v. Fletcher Allen, Op No. 07-17WC, the Department found that cases involving neuropsychological examinations are not the ordinary case.   Because of concerns of test validity and test security raised by the recording, many neuropsychologists consider themselves ethically prohibited from allowing their battery of neuropsychological tests to be recorded, and the defense put on evidence to show that the effect of allowing a claimant to insist on a recording would be to deprive the carrier of the right to the testing altogether.  This, the Department held, established “good cause” to issue a protective order, and a directive to the claimant that her right to pursue her claim would be suspended until she submitted to the neuropsychological testing, without her video camera.   More questions?   Call us.

Oliver Abbott