Recording IME

A dispute arose between the claimant and the respondents about video and audio recording a medical exam.

In Barker, the claimant refused to participate in an IME requested by Respondents unless he could video and audio record the IME. A dispute arose between the parties and an ALJ eventually compelled the claimant to attend the IME without a video recording. The claimant appealed the determination to not allow a video recording of Respondents’ IME.

Upon appellate review, the Utah Court of Appeals (the Court) first looked at the Utah Administrative Procedures Act which allows agencies to create rules for discovery under Utah Code § 63-G-4-205(1).

The Court noted that if an agency had not enacted its own rules governing the discovery process, the parties to an administrative proceeding are permitted to conduct discovery according to the Utah Rules of Procedure. Id.

Accordingly, the Court looked at the Utah Labor Commission’s (the Labor Commission) administrative rule R602-2-1(F)(3) governing medical examinations requested by Respondents, to see if the rule addressed recordings of medical exams. The Labor Commission’s administrative rule was silent on the matter of recording, so the Court looked at Rule 35 of the Utah Rules of Civil Procedure. Rule 35 allows audio and videos recording of medical exams, with the caveat that if the recording would interfere with the exam, then it is not allowed. Utah R. Civ. P. 35(a).

Rules Applicable to Discovery

Thus, the Court determined that the Administrative Procedures Act and the Labor Commission’s own rules indicate that the Utah Rules of Civil Procedure are applicable to discovery issues in formal adjudicative proceedings unless they conflict with other applicable rules. And there is no explicit conflict between Rule 35’s recording provision and the administrative rules because the administrative rules are silent about the claimant’s right to record Respondents’ IME exam. The court held that Rule 35 applies and the ALJ erred in ordering the claimant to undergo Respondents’ IME without recording.

Barker v. Labor Comm’n, 528 P.3d 1260 (Utah Ct. App. 2023).

Want to know more? Contact Andrew Vogelgesang at or 877-259-5693.

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