During your workers’ compensation case, you may be asked to undergo an “independent” medical examination, or IME. They are also known as Rule 4:19 exams or defense medical examinations.
In reality, the doctors who perform these examinations serve insurance companies and are paid handsomely to downplay injuries, make a case for cheaper treatment, and make a report that’s as favorable to the insurance companies as humanly possible.
It’s smart to wonder whether you may record these examinations to bolster your case.
According to the 2023 New Jersey Supreme Court Case DiFiore v. Pezic, you may bring a neutral third-party observer to make an audio or video recording of the exam if your lawyer informs the defendant in advance. If the defense counsel opposes the third-party observation or recording, the parties should meet and confer to reach an agreement.
The court also did not seem to hold the common view that an IME or DME is an “adversarial proceeding inevitably designed to disprove claims of injury and trap plaintiffs into admitting or showing their claims are exaggerated or fabricated.” In the court’s view, a DME/IME is a professional assessment. The courts did acknowledge that DMEs/IMEs are not “always a purely objective exercise unaffected by any conscious or subconscious biases of the examiner.”
A recording is only considered to be evidence if it follows these guidelines. While you won’t get into any trouble for recording your IME outside of these guidelines (New Jersey is a one-party recording state), you won’t be able to use the resulting recording to bolster your case if you take that route.
If the two cannot reach an agreement, the defendant (your employer and their insurance company) may move for a protective order to bar the recording.
The law certainly favors employers here, but you at least retain some limited right to create a recording of the exam. In addition, many companies will not necessarily want to deal with the burden or the delay of blocking the recording.
Want to record your IME? Don’t have legal counsel yet who can request this right on your behalf? Contact Talone Law to schedule a free consultation today. We are experts at helping New Jersey residents successfully claim their workers’ compensation benefits, and we can help you navigate the issues and pitfalls that can surround any workers’ compensation case.