6-4-12; Understanding the IME Battleground in Workers’ Compensation Claims

We recently learned there is a claimant lawyer and physician in Georgia who have created a DVD set that is available for WC attorneys and claimants to purchase and use to prepare their clients. Their stated goal in creating this DVD is to prepare claimants for the issues associated with an IME.  More specifically, they seek to provide tips for the examination such as:

·         How to behave with the examiner;

·         Making sure they provide a medical history consistent with medical records, written accident reports or recorded statements,

·         Assist claimant in discussing the injury's impact on any preexisting condition;

·         Confirming the need to arrive early and dress appropriately;

·         Consider taking notes after the examination that includes the amount of time the IME physician spent with the examinee.

Some critics feel the apparent goal may be to “game” the IME system by previewing the exam and telling a wily claimant how to get the outcome they want from this crucial part of the WC process.

As workers’ compensation systems across the globe struggle with compensability and what conditions are “related to work,” many of the United States workers’ comp systems are turning to doctors to ask for answers. Outside of treating physicians who have a built-in bias about getting their bills paid and treatment protocols approved, as defense lawyers and counselors, we look to what most states call “independent medical examiners” for their input. The event that brings in expert medical opinions is typically codified and called an IME. In the IL WC system, some hearing officers and attorneys refer to the process as Section 12 exams, as that is the “source of law” on IME’s in this state.

Most states have codified the IME process and require the employer or its insurer/TPA to pay the entire cost of the independent exam including expenses for the worker to get to and from the appointment along any time lost from work. As acceptance and payment for some or all of the costs of the workers’ compensation claim may depend greatly on the opinion of the independent examiner, there are almost always disclosure requirements with penalties for late or non-disclosure in many states.

Remember, the IME Process is a Form of Pre-Trial Discovery

We had another claimant attorney repeat the silly phrase “there is no discovery in WC.” We assure our readers in IL and the other states we defend clients in, there are lots of discovery tools and an IME is unquestionably one of them. How does that work? Well, the IME doc gets to ask questions as part of the process and the answers are unquestionably “discovery.” The history given to the IME doctor can be used as part of the claim to support or reject a questionable injury.

Adjusters and lawyers who write IME background letters should also remember the IME doctor isn’t treating the examinee. Most doctors are careful to advise the worker they aren’t going to provide medical care and there is no doctor-patient relationship. If you write the IME background letter, we suggest you avoid referring to the worker as a patient and instead call them an “examinee.”

The IME doctor is evaluating a medical condition and has every right to not only refer to medical records and histories, the doc can also ask the patient to relate what happened to them at the outset of the problems for which they are being examined. We urge all IME doctors to do so and have the patient provide a history either in writing or orally. We are aware of at least two claimant attorneys who tried to write out IME histories for the patient to bring to the exam and present to the doctor. We consider that an abuse of the concept and our advice was to send the patient home until we were able to work out the dispute with the hearing officer.

In seeking a history as part of an independent medical exam, to the extent they are comfortable to inquire, we ask IME doctors to ask about

·         Pre-existing medical or personal conditions that might impact the evaluation and examination—such conditions are not always listed in treating records;

·         Family histories of medical or personal conditions of relevance;

·         Non-work-related social, religious, volunteer, family, recreational or community activities that might impact the exam and their opinions;

·         Second, third or part-time jobs or other work that might be of importance to the evaluator.

While these seem like common sense issues, we assure our readers very few insurance carriers/TPA’s ask these simple questions in setting an IME. We suggest everyone consider adding them.

Garbage In, Garbage Out-Watch Your Nomenclature in Drafting an IME Background Letter

In almost all workers’ compensation settings, the IME doctor is your medical expert and you are almost certainly going to “stuck” or legally bound by their decisions and scientific determinations. In that setting, it is critically important to frame and ask questions carefully. You typically want to avoid leading questions and nomenclature is vitally important. We like to train adjusters, risk managers and newbie lawyers to understand setting an IME is like programming a computer to some extent. One rule to remember is “Garbage in, Garbage out.”

Huh? Well, our favorite example is asking an IME doctor “Pain at work, is it related to work?” If you set an IME appointment, pay a lot of money and ask a doctor that simple question without any more background details or information, you have probably wasted your money and time because the answer is usually going to be yes. You have to provide sufficient background and carefully ask the questions to get fair and impartial medical opinions back from your expert.

If this is still unclear, we have a claim we are defending right now where claimant was walking and carrying a box. He said his hip got sore and he wants WC benefits. His treating doctor has recommended surgery and the TPA has asked us to get an IME to confirm the condition is or is not related to work. Our client’s safety and risk folks investigated fully and looked carefully at the event. Claimant provided a detailed written statement. The adjuster wrote the IME background letter and sent it to us for review. In our opinion, the adjuster made a couple of crucial but avoidable mistakes.

Carefully understanding the facts of the event, claimant was simply walking with a small box—let’s say less than 10lbs. or about the weight of a gallon of milk. He didn’t slip, trip and there were no foreign objects or fluids in the area he traversed. In drafting the IME letter, the adjuster repeatedly referred to the onset of hip pain as an “accidental injury.” She also occasionally used the term “traumatic” in referring to the event.

We don’t agree with that nomenclature at all and feel many doctors might review it and feel they are being asked—“If claimant suffered a traumatic accidental injury to his hip at work, it is related to work?” they may answer yes. There are IME docs who might assume you know something they don’t when you use the words ‘trauma’ and ‘accident’ and ‘injury’ in reference to walking down a hall with a small box. The problem isn’t with the IME doctor, it is with the question. It isn’t an “accidental injury” to walk down a hall with a small box. There is no “trauma” presented in the facts. But if you refer to the event or onset of pain as an “accident,” the IME doctor may agree with you.

Please also understand a poor IME outcome can cause large claims to become compensable—if this claimant undergoes hip surgery to potentially include hip replacement and then has permanent restrictions in some of the states KC&A defends claims in such as Illinois and Michigan, you may be not just owe for the surgery, you may also owe lifetime benefits that can be in the six and seven figure range.

For these reasons, we urge all of our clients and readers to, at a minimum, incorporate legal review before you finalize an IME background letter. We don’t think busy adjusters who are usually overloaded with claims have the time to do anything but take IME background form letters, mildly modify them and send them out. We consider that a formula for claims disaster.

Buzzwords to consider carefully are

·         ‘Accident’ which should be used only when there is what we all consider an accident, something unforeseen, unexpected and typically involving a safety failure—if there isn’t a true accident in a claim, we suggest you consider calling what happened an


o   Event

o   Occurrence or

o   Onset of pain


·         ‘Exposure’--repetitive trauma claims almost never have ‘accidents’ and are akin to occupational disease claims. For one example, we don’t recommend calling the onset of carpal or cubital tunnel an ‘accident.’ Similarly, if a worker is suffering from conditions such as MRSA or hearing loss, we prefer you refer to such a problem as an exposure unless the problem started with a traumatic event and the concern arose during post-event care.

Formatting IME Background Letters

Our overall focus is to start with a fair synopsis of the facts of the claim as we understand them. We consider that important, as doctors are busy and giving them a frame of reference is important.

Second, we then go to interrogatories that we want the IME doctor to address. This is where we get to the important aspects of what we are paying the doctor to answer in their evaluation. We truly appreciate it when doctors address the specific questions they are asked and don’t make up their own.

In IME background letter, we feel it critically important to avoid asking “leading questions” i.e., questions that tend to point to or include the answer sought. What the defense industry constantly faces in the IME process is the concept of the defense IME doctor being a “hired gun” where the outcome of the exam is predetermined and controlled by the adjuster or insurance company/TPA. If you ask leading questions, you are almost certain to hear that trite claim.

The last aspect of the IME background letter is a fair and impartial summary of the medical records. Understanding diligent IME doctors are going to review the records in every event, we feel it is still a solid idea to highlight the important developments and point out diagnostic testing, surgical interventions and other milestones in care. Again, if you unfairly characterize the medical care in a medical summary, you may get criticized for making the IME doctor appear biased, even if they are not.

Handling Divergent Histories—an IME Doctor May Have to Provide a Bona Fide “Double Opinion”

What does an IME doctor do when you have dual versions of the events? For example, your investigation indicates claimant lifted a small box in a grocery store and suffered a minor shoulder strain. Claimant worked without medical care or work restriction for a month. Co-workers report no complaints of pain were voiced. In contrast, claimant says he/she lifted a heavy refrigerator, hid the condition from his co-workers/managers and suffered intense burning pain in their shoulder for weeks, culminating in the first office visit to their doctor.

In reviewing such a chart, we suggest an IME doctor can provide a double opinion. The IME doctor doesn’t have the ability, in a pretrial setting, to confirm what the facts will eventually be—such issues are left to hearing officers and reviewing courts. In our view, the IME doctor can say

·         If the hearing officer finds claimant lifted a small box, worked without medical attention, work restriction or complaint thereafter, the condition isn’t related to that event.

·         If the hearing officer finds claimant lifted a heavy appliance, worked through pain and was forced to get care due to a crescendo of symptoms, the condition is related to that event.

Keeping Psych Out of IME Reports

We aren’t sure how to best handle this one and ask for our readers’ thoughts. Lots of claimants have psych issues of one sort or another—many times the psych issues relate to the very essence of what the claim is about. For one example, Waddell signs which demonstrate a given claimant is faking medical problems evoke a psychological factor that may be able to be addressed by therapy but also may resolve by denial of the WC claim by an arbitrator or hearing officer.

We have had IME providers say a given claimant is medically fine but needs psych care. Sometimes an IME doctor will outline that issue in detail and sometimes they won’t. When the IME doctor raises psych issues, it can provide guidance and sometimes it can be a claims catastrophe because you know have your expert suggesting/recommending a full psych protocol that can cost well into the five or six figure range. Most of our clients don’t want that.

What we have started to do is to provide a caveat in the IME background letter asking the IME doctor to contact us before finalizing the IME report if they feel there are work-related psych issues overlaying the IME process itself. We seek your thoughts and comments on how to best address this issue.

And we seek your thoughts and comments on this entire article. Please feel free to post them on our award-winning blog.