06.05.2022 Can I take a support person with me to an "Independent" Medical Examination?

Attending so called "independent" medical examinations (IME's) at the request of your employer/Comcare can be a stressful business but under the Safety Rehabilitation and Compensation Act 1988 (SRCA) you are required to comply with  "reasonable" requests or face a suspension of your incapacity (loss of earnings) benefits. In this regard, even if you believe that an IME request is unreasonable and you refuse to attend and you ultimately successfully challenge a decision to suspend your benefits, because the legal process under the Comcare scheme can take 12 to 18 months, if your incapacity benefits are suspended you can be left without income for a long time.

So whilst the reasonableness of a request depends on the facts of each  case, there are some considerations which should be taken into account in deciding whether a request to attend an IME is appropriate:

  1. When did you last have an IME and how many IME's have you been required to attend;
  2. Is there a new issue on which an opinion is required which has not been considered in prior IME's;
  3. Is the specialty of the doctor who you will be seeing relevant and appropriate to your injury and the purpose of the IME; 
  4. Is the location and distance required to be travelled reasonable?; and
  5. Have arrangements been made for interpreters and/or other ancillary requirements such as ramps etc.

You are entitled to claim travel expenses for attending the IME.

Another question frequently asked by workers is whether they can take a support person into the assessment. In relation to examinations involving physical injuries, this should normally be agreed to but you should advise your claims agent in advance that you intend taking  a support person. If the request is denied, you can refuse to attend the examination but issues will arise as to whether or not the refusal was "reasonable". It is hard to cover all of the possible scenarios where it could be said to be unreasonable to refuse to attend an IME simply because your claims officer (or the actual assessor) has refused to allow your support person to attend. You should seek legal advice in these circumstances.

Where the issue of taking a support person into the assessment becomes particularly tricky is where the claim involves psychological injuries and where you are being  assessed by a psychiatrist. This is because having any third party present in a psychiatric assessment can impact on how  you might answer the psychiatrist's questions. For example, if the psychiatrist was to ask you how the injury has impacted on your sex life and your partner is sitting in the room, you may be reluctant to be completely honest in your response and this can impact on the accuracy of the assessment. Ironically, psychiatric assessments are probably the examinations where injured workers most need a support person to attend with them but for the reason described above, these are the assessments where it is almost always not reasonable to insist on a support person being present. Having said that, there are psychiatrists who will not object to a support person being present and provided you ask in advance, the request may be agreed to.

Obviously, there are many factual situations which can impact on what is reasonable in terms of IME's. If in doubt, seek legal advice.

Law Institute Victoria Accredited Personal Injury Specialists

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