Whenever any person puts his or her mental or physical
condition at issue in any case in which compensation is
sought, the insurance company or other responsible party
defending the case has a right to have a physician of
its own choice examine the claimant. The logic of this
general rule cannot be questioned. The manner in
which so-called "independent medical examinations" are
carried out is often fraught with controversy. If the
claimant is not properly prepared for what lies ahead,
the claim can be lost or seriously damaged.
The procedural rules governing independent medical
examinations vary among federal and state jurisdictions
for tort cases, as well as for cases involving statutory
claims such as workers compensation. Several general
requirements are universal.
The defending party must give reasonable notice of the time,
place, manner, conditions and scope of the examination,
and the identity of the examiner. Usually, only one
independent medical examination is allowed, unless there
is good cause shown for more. The claimant is not
allowed to object to the identity of the examiner
without a compelling reason.
In most jurisdictions, the patient is reimbursed for mileage
to and from the examination. The patient may in most
jurisdictions bring to the examination, at his or her
own expense, the treating physician, but this is seldom
done. The defending party must pay for the examination
by its doctor. The defending party must provide a copy
of the report to the patient or the patient's attorney
within a reasonable time after the report is available.
In exchange, the patient must provide true copies of any
and all reports of each person who has examined or
treated the claimant with respect to the injuries for
which damages are claimed, and a medical authorization
to the defending party to allow it to obtain any and all
records, radiological films, or other evidence of the
patient's condition. Any physician-patient privilege
with respect to the condition at issue in the case is
deemed to have been waived by the making of the claim
for compensation. The independent medical examiner is
subject to being examined under oath by the claimant's
attorney at a deposition or by cross-examination at the
trial or hearing. If a claimant unreasonably refuses to
submit to an independent medical examination, the claim
can be suspended or dismissed by the judicial tribunal
without further ado.
The above paragraph outlines the easy part. The hard
part is how to prepare for the examination.
Most physicians who perform independent medical
examinations would really prefer not to get involved in
the legal system, but reluctantly perform this service
on an occasional basis as part of their community
service. Their reports are usually straightforward. They
call it as they see it. It is not uncommon in this
situation for a legitimate dispute to exist over the
cause of the condition at issue, or the nature and
extent of disability. Reasonable minds can and do differ
over these issues. The trier of fact must resolve the
dispute unless the parties negotiate a settlement.
Some physicians who perform independent medical
examinations, however, perform hundreds of these each
year for the insurance industry, and make this service a
large part of their practice. Their bias for the defense
is notorious. It is not unusual for some of these
physicians to charge between $500 - $1,000 for such
examinations and record reviews. If they give testimony,
the bill doubles or triples. How much can they earn in a
week, month or year doing such examinations? You do the
math. It pays better than clinical medicine in some
cases!
Such physicians often present an obstacle to a just
resolution of the controversy, because they predictably
and regularly come to conclusions, write reports, and
provide testimony quite slanted in favor of the defense
and against the claimant. This type of independent
medical examiner is not "independent" in any sense of
the word. Instead, the examiner is "adverse". Because
the examiner so frequently performs the task, the
examiner becomes adept as an investigator. The examiner
assumes the role of insurance adjuster or claims
attorney, playing the role of the devil's advocate.
Examiners who fall into this category are well known to
attorneys who are active in injury litigation. Their
names are seen so frequently that "books" are kept on
their usual propensities, typical reports, standard
charges, annual earnings from forensic work, and
weaknesses on cross-examination.
The modus operandi of some of these examiners to defeat
the claim is obvious - attack the credibility of the
claimant, making the claimant out to be dishonest. The
presupposition is that every claim is a fraud and must
be exposed. The task becomes one of discrediting the
claimant, rather than ascertaining the cause of the
condition or the nature and extent of disability.
Everything from the claimant's past medical history,
history of present illness, cause of condition,
subjective complaints, objective findings on physical
examination, laboratory testing, diagnosis, treatment
history and prognosis is called into question and can be
discredited if the claimant is not 100% accurate in
reciting the facts during the independent medical
examination, or there are any inconsistencies in any of
the old, usually voluminous medical records. These
doctors have a penchant for writing reports that deny
that there is any pathological condition whatsoever. If
there is a true malady, they blame it on a pre-existing
condition or a cause other than the trauma that is the
subject of the litigation. If that doesn't work, then
they minimize the extent of the injury.
There is only one way to go into an independent medical
examination, no matter who is performing it. Thorough
preparation and education of the claimant is required.
Counsel and the client should meet, if possible, well in
advance, and go over all prior relevant medical records.
No prior doctor visit for the same condition should be
overlooked, because the claimant will certainly be asked
about it during the independent medical examination. An
innocent lapse of memory by the claimant when questioned
by the independent medical examiner about a prior knee
injury, back or neck problem, visits to a chiropractor,
absence from work, fender bender with an emergency room
visit, or x-ray of the same bone or joint can prove to
be all the examiner needs to conclude that the claimant
is trying to hide something, and that the claim is
illegitimate.
The claimant should be prepared by counsel to address
the following subjects with the independent medical
examiner in detail:
Prior health and medical history, including any and all
traumatic injuries from vehicle accidents, work
accidents, falls, and sports accidents, and all visits
to all health care providers for the same or any
related condition;
Prior social and recreational activities;
Events on day of accident, in great detail;
Claimant's role and responsibility for the accident, to
show contributory negligence;
Detailed itemization of all injuries sustained;
Chronological medical history subsequent to the day of
accident, with treatment by each health care provider;
Timetable for acute and chronic stages of each injury,
how pain was rated on each prior doctor visit, what
hurts now, and how
pain is rated now;
Prior and subsequent accidents with injuries, if any, of
any type;
Claimant's opinion of the nature and extent of
disability and impairment of each area of the body that
was involved;
How activities of daily living and recreational
activities are affected;
Temporary restrictions imposed by doctors;
Functional capacity evaluations - permanent restrictions
imposed by doctors;
Physical exertion category of work claimant is capable
of doing with restrictions;
Transferability of skills from work done prior to
injury;
Time lost from work, with specific dates;
Work history after accident;
How injuries have affected ability to do basic work
activities;
Future treatment expected.
With thorough preparation before the independent medical
examination, the claimant can avoid the traps and
pitfalls of an inaccurate or inconsistent history, upon
which skilled examiners are often so ready, willing and
able to pounce.
There are certain tests, known as “Waddell’s Non-organic
Signs,” that most independent medical examiners employ
for the purpose of identifying psychological factors in
patients who claim low back problems resulting from
trauma. It is helpful to know what the signs are,
in order to avoid so-called “false positive” results
upon which too many independent medical examiners base
their adverse opinions. The doctor will perform a
hands-on examination, and test for each of the
following, looking to see whether the patient reacts in
a fashion indicating some pathology, under circumstances
where the test results should be negative:
A.
Tenderness:
(a)
if the skin is exquisitely sensitive and tender
superficially, to a light touch or pinch over a wide
area beyond the normal distribution of the sensory
nerves, the doctor will suspect exaggeration;
(b)
if the anatomical structure is exquisitely sensitive and
tender to a deep palpation, over a wide area beyond the
anatomic region of the injury, rather than only in the
localized area of injury, the doctor will suspect
exaggeration.
B.
Simulation Tests
(a)
if the doctor presses straight down on the patient’s
head, while the patient is standing (axial loading), and
the patient reports low back pain, the doctor will
suspect exaggeration;
(b)
if the doctor rotates a standing patient’s shoulders and
pelvis simultaneously, in the same plane, and the
patient complains of low back pain, the doctor will
suspect exaggeration.
C.
Distraction Tests
(a)
if the doctor finds something wrong, and then while
distracting the patient, does another test of the same
area without explaining what he is doing or why, and the
patient has a negative test or doesn’t give a full
effort, the doctor will suspect exaggeration. A
common example is to ask the patient to raise one leg
against resistance while lying supine. If the opposite
leg does not press down, for leverage, then the doctor
knows that the patient is not giving a full effort to
raise the leg, ostensibly to exaggerate;
D.
Regional Disturbances
(a)
If the patient complains of undue weakness, such as the
giving way of muscle groups, the doctor may
suspect exaggeration;
(b)
If the patient claims numbness, tingling or pain over an
area outside of the dermatomal distribution where the
nerves from the spine lead down the leg into the toes,
the doctor may suspect exaggeration.
E.
Overreaction
(a)
If the patient excessively cringes, grimaces, or
otherwise displays unnatural responses to sensory, motor
or reflex tests, the doctor will suspect exaggeration.