An independent medical examination can be requested at any
reasonable time and place in the state for a variety of reasons: there may be an
issue of causation, ability to work, second opinion on surgery, need for
further treatment, or assessment of permanent partial disability. No matter what the purpose of the examination
is, a well-reasoned IME is critical to the successful defense of workers’
compensation claims.
This blog focuses on the steps employers, carriers, third
party administrators and lawyers should take as well as the mistakes to avoid
in setting up IMEs.
Explain the nature of
the claim to the IME physician.
Example: Employee
files an occupational claim petition alleging physical labor from 2000 to
January 30, 2019 caused knee pathology. The employer denies the claim petition.
An IME is arranged. There is no
explanation of the allegations of the claim to the IME physician. No letter is
ever sent other than perhaps a check-off letter asking for guidance on “permanency”
and “causation.” The injured worker tells the physician during the IME that on
January 30, 2019 he felt pain in his left knee while walking at work. The
employee has an MRI showing a tear. The doctor writes a report stating, “I find that the petitioner’s accident of
January 30, 2019 caused his knee pathology and I recommend arthroscopic surgery.”
What went wrong? The claim was not for a specific accident! January 30, 2019 was just the last day of
exposure when the pain was noticed or became intolerable. Occupational claim petitions are required to
list a beginning and end date. This
claim asserted that 19 years of physical labor caused the knee pathology, not
walking at work one day (which is not a true accident). The doctor in this case did not know that the
claim was denied, nor that this was truly an occupational claim and that the
worker was never injured on any particular day.
Send the IME
physician key information in the case:
As a general rule, the IME physician wants to read the claim
petition to understand the formal allegations, as well as the answer of the
respondent. The doctor wants to see all treating records including prior
records that may be relevant. If there
are answers to interrogatories, the doctor will want to see them as well
because they often contain important information. If there is a recent and subsequent injury,
whether work or non-work related, the IME doctor will want that information.
If you have a
specific doctor or type of specialty you need for an IME, don’t call an IME
group and ask for the next available IME date without mentioning the particular
physician or specialty.
IME companies have dozens of physicians that they schedule for IMEs. Some are surgeons; some are not. If you want the earliest possible date, the company will find the physician whose calendar is open and assign you that doctor. That may or may not be the doctor or specialty you wanted. Some physicians are very busy and booked out for three months; others have fewer assignments. If you just want any orthopedic surgeon as soon as possible, but you do not want an occupational physician or physiatrist, then make that clear.
Make sure you have
all the relevant records –including records of prior and subsequent accidents –
before setting up the IME.
We all want cases to move quickly. The average New Jersey claim petition lasts
28 months, so understandably clients are concerned about moving files. However, rushing an IME is generally a
mistake. The absence of critical records
often costs the employer a great deal of money. The IME doctor can only give an opinion on
the records he or she has. There may be
prior records that will show that the condition at issue was already in
existence a few months before the accident, or that there has been a subsequent
non-work car accident which has significantly aggravated the work-related
condition. The process of getting
medical records takes time. It takes
time to prepare and send HIPAAs to opposing counsel, who then send them to
their clients to be returned to respondent counsel. Hospitals often delay sending records. The hospital may reject the medical
authorization and demand a subpoena. But
getting the prior or subsequent medical records may help clarify whether the
claim is even work related, thereby avoiding costs of surgery and a large
permanency award, with a potential reopener down the line. This practitioner has seen cases where the
doctor is missing almost all the treating records and writes a report basically
drawing no conclusions pending receipt of medical records. That creates a need for a second IME with
double the cost.
When a case has high
exposure or is likely to be tried, retain the most qualified expert.
Yes, it costs more to retain a board certified expert with a sub-specialty. But there are many high exposure cases in workers’ compensation, and the cost of not retaining a specialized expert is far greater than the extra $1,000 you may pay for a medical report from a highly qualified expert. When you have a case involving lung cancer, you should retain a board certified oncologist or pulmonologist. There are many internists who do such examinations but they may not have sat for or passed the board certification in pulmonology. The outcome of a case often depends on the credibility of competing experts. Judges always assess credibility of medical experts; they review their training and qualifications, and they consider the expertise of the IME physician when the experts flatly disagree on an issue in the case. This advice is also true in orthopedic cases. If the case involves an issue of whether a fusion surgery should be performed, respondent is far better off retaining an expert who performs fusions, rather than an expert who does not perform such surgery.
Find out early on if
a translator is needed.
There are few things in workers’ compensation more
frustrating than cancellation of an IME because the employee could not converse
with the IME physician. Contact must be
made early on with petitioner’s attorney to inquire whether the injured worker
will need a translator and if so, what specific language will be needed.
Try to make a reminder call or send an email to petitioner’s attorney a few days before the IME.
This is not always possible to do, since everyone is so busy, but it pays off. Many times a letter is sent to a petitioner’s attorney two or three months before the exam date. When an exam is set up months in advance, there is a higher likelihood of a missed appointment. Communications fall apart or injured workers forget about the exam date. If possible, a follow-up call or email to counsel a few days before the exam may eliminate a potential missed appointment.
The post Maximizing Defense IMEs in New Jersey Workers’ Compensation appeared first on NJ Workers' Comp Blog.
