A very pleasant woman contacted me about her very serious back injury at work. She had seen a doctor for an IME and during that exam, the doctor pushed on her in a way that caused her pain.

Flash forward to a year later and she has to see that same IME doctor again for a different reason. She is very nervous about the exam and that the doctor will do something that will make her injury worse. So she called me and asked:

Can I record the independent medical examination?

The answer is yes, but …

Just Because You Can Do Something Does Not Mean You Should

Back in August of 2023, an Illinois law was passed that says that during an IME, you have a right to have someone else present in the exam with you AND to video record the exam if you want to. The law seems to have been written with personal injury claims in mind, but we believe it applies toward work comp claims in IL too.

So the answer is yes, you can record an IME, but that doesn’t make it a good idea. There are a bunch of reasons I say that:

  1. 99% of people who go to an IME do not record it. In my opinion, if you do so, it will make you look crazy or cause the Arbitrator to look at you as not normal. That in turn might cause them to give more credibility to the IME doctor than they would normally. In the case of my caller, she was going to a well known “hired gun” IME doctor. The Arbitrators know about him and do not need to be given a reason to favor them.
  2. The video could be used against you. It’s possible for the defense attorney to subpoena the video. If it shows any inconsistencies in your behavior or makes you look bad in any way, that could torpedo your case.
  3. If you want a witness, you have the right to have someone in the room with you. The doctor can likely set ground rules that they can not speak on your behalf or instruct you how to answer, but they can testify as to how long the exam lasted, what the doctor did, etc. You probably don’t need that and I would usually only advise someone to bring someone with them for comfort or assistance in walking.

Think Of The “Seinfeld” Soup Nazi Episode

What I explained to the caller is that during the Soup Nazi episode on Seinfeld, the people who got soup were the ones who followed the rules and acted “normally.” If your case does have to go to trial, the result will come down to, in part, the credibility of your doctor vs the IME. Your doctor has seen you multiple times. The IME saw you once for 5-10 minutes. All things being equal, the treating doctor’s opinion usually has a lot of weight unless they have a bad rep.

In other words, if you act normal and have a good doctor (and good case facts) you should win. That isn’t a guarantee, but it’s your best chance. On the other hand, if you cause part of the IME report to focus on your behavior, you are giving the Arbitrator a reason to think twice about finding in your favor. Fair or not, Arbitrators can be biased to people who seem to be gaming the system or acting in an unusual way.

I’m sure it is frustrating to have to go to an IME. It’s probably worse if the first time they did something to cause you pain. The best advice I can give you is talk to your lawyer (or call us if you do not have one) before you do anything. Sometimes you can be too smart for your own good and do not find out that you made a mistake until it is too late.