Recording and Posting Independent Medical Evaluations

In 2023 the legislature amended RCW 51.36.070(4) to allow an injured worker to record their Independent Medical Examination (IME) as long as certain criteria are met.

· The injured worker must notify the IME provider at least 7 days in advance of the IME that they intend to record the IME.

· The injured worker is responsible for any costs associated with recording the IME.

· The injured worker may not interfere with the IME examination and may not hold the recording equipment during the examination.

· The injured worker must provide a copy of the recording to the department or employer within 14 days if it is requested.

The Court of Appeals extended injured workers rights and now injured workers are allowed to post their IME recordings to social media platforms.

Although Title 51 allowed injured workers to record the examinations, subsection (4)(g) forbade posting the recordings on social media and stated that violating the subsection could result in a $1000 fine. Ten injured workers sued the State alleging that the subsection is an impermissible prior restraint on speech.

The Court of Appeals (COA), quoting the Supreme Court stated, “social media offers relatively unlimited, low-costcapacity for communications of all kinds and allows users to engage in a wide array of protected 1st Amendment activity on topics as diverse as human thought. Furthermore, it is well established that online posts may constitute speech or expressive conduct.

COA concluded the blanket prohibition contained in the statute is a hallmark or a prior restraint. Therefore, it is an impermissible prior restraint on speech. And as such, it is an impermissible infringement on the injured workers’ free speech to prevent them from posting IME recordings to social media.

If you or someone you love has been injured at work or has an independent medical examination (IME) coming up, contact us here at Atlas Law and let us take the weight off your shoulders!