After last week’s KC&A Update article about independent medical exams, you asked lots of the same questions and we want to provide our thoughts.
· What do we tell an IME doctor about functional capacity evaluations or FCE’s?
This is a question that always causes some controversy. Most IME doctors are asked two main questions
1. Is the medical treatment provided necessary?;
2. When can claimant return to light or full work?
In our view, most IME doctors are going to accurately analyze medical records, examine the patient and answer the first question. In our view, doctors love to look over each other’s shoulders to opine about medical care—it is one of the things they are trained to do throughout medical school and their internships.
The stickier problem is opining about return to work. There are several problems with asking doctors this question. The first is the window of time an independent medical examiner has with the patient. Even the most diligent IME doc is going to see claimant for ten-twenty minutes at the very most. That is a relatively short time to view the worker’s actions, habitus, outward appearance and abilities. From that tiny window, the IME doctor is being asked to project the worker’s abilities to put in a full day of what may be rigorous work. For that reason, some doctors like to rely on a functional capacity evaluation in which the worker is put through an entire day of observation while performing tasks that are in line with their expected work position.
The concept of an IME doctor recommending an FCE is sort of like a “dangling participle” in English class—it isn’t wrong, it just doesn’t work well. The difficulty that arises from an IME doctor recommending an FCE is two-fold. The first difficulty is the FCE is unquestionably incomplete—the doctor’s opinion on return to work is conditional and can’t be relied on by either side or an arbitrator until something else happens at a later time. That can be a major issue when the IME was the subject of advances of TTD/PPD to keep the employee paid while seeking to get a medical opinion to effectively resolve the return to work dispute.
The other problem with an IME doctor recommending an FCE is what to do when the injured worker doesn’t show up for the FCE or worse, they show up and don’t fully cooperate and/or provide an invalid effort. This truly creates a soggy mess for a claim—no one knows what to do about such a situation and it is certain to cause delay and additional expense. In the vast majority of claims, we don’t want the IME doctor to leave “open” an important question as part of their evaluation—we want them to opine about return to work and not defer the determination to a later FCE that may be of limited or no value.
Our vote is to make clear in the IME background letter what you want the IME doctor to do about FCE’s or any diagnostic testing—either tell the doc to avoid the issue altogether or better yet, get the FCE or diagnostic testing first so the doctor has a full picture from which to work.
· Should an IME doctor treat the patient?
This is another sticky wicket and has its own issues for an adjuster, defense lawyer or risk manager to address. In many states, you have selected your “independent” medical examiner and will rely on their opinions and determinations on the claim. If you allow the IME doctor to start treating your worker, you better be very sure they are going to provide excellent care and get the worker back to the highest possible level of work.
We did have a situation a couple of years ago where an IME doctor was taking over care, providing excellent surgical results but then routinely providing permanent work restrictions that limited the worker’s ability to come back to the same position. We truly feel the doctor was doing this innocently and didn’t understand what was happening as a result of his decision-making. The problem we faced is we were now stuck with his decisions to the extent we couldn’t get another IME to contradict our first IME.
Whatever you do, you are always taking a chance on allowing an IME doctor to take over care. We urge our readers to address this in any and every IME background letter so you aren’t surprised at the end of the claim.
· What do we do when claimant is a weird, scary person and the IME doctor won’t examine them?
We recently had a claim where the injured worker was heavily tattooed. One message from the tattoos we learned about U.S. street culture is claimant had killed several folks or wanted the rest of us to think he had killed several folks. The IME doctor put the kibosh on the exam as he/she didn’t want to become the focus of this person’s ire.
We aren’t sure what to do about such a claimant. We can’t imagine most arbitrators or hearing officers would be happy to have such a claimant before them—it is difficult to be impartial with someone who wants you to think they will kill you if you disagree with them. We have to admit we are mildly stumped about this one. Such a worker has a right to benefits when injured but the employer also has a right to get an independent medical exam with a full and fair hearing in front of an impartial hearing officer to follow.
We turn to our readers for your thoughts on all of these IME issues above. Please do not hesitate to post them on our award-winning blog