Newsletter Spring 2001
Independent Medical Examinations

An IME is most often used to clarify medical, disability or liability issues involving the client's care. Legal counsel, workers' compensation carriers, insurance companies or medical case managers frequently request an IME as part of discovery proceedings.

The client must be given reasonable notice of time, place, manner, conditions and scope of the examination and must be given the identity of the examiner. Objections to the specific examiner are not allowed without compelling reason. If the client unreasonably refuses to submit to an IME, their claim may be suspended or dismissed. The client is required to provide any and all reports of each person who has examined or treated them for the injury for which damages are claimed.

Purpose of IME
A thorough and impartial IME can be successful at accomplishing the following goals:

• Establishing or confirming a diagnosis through a second opinion

• Projecting the duration and degree of present and future physical capabilities and disabilities.

• Proving a causal relationship between the client's injury and related liability

• Terminating medical or indemnity benefits

• Evaluating permanency of an injury

• Serving as a medical release to full or light duty

Certain “red flags” may indicate the need for an IME. Examples may include: a client not regularly attending physician appointments, the treating physician requesting costly diagnostic testing or surgery while one party questions the need, or the client appears capable of working but the physician is not receptive to commenting on this. Other red flags may be a lack of substantiated positive results despite treatment rendered, concerns regarding inappropriate treatment or suspicions of malingering.

Specific Issues
The burden of proof is on the client to explain the circumstances of the event and the resulting injury. Physician records must then substantiate this. Often preexisting conditions, exacerbated by injuries or trauma, are the most tedious to sort out. Unrelated latent conditions that may be aggravated by the injury also need to be considered. Perhaps the most challenging causality issues come into play when reopening cases that deal with other complex issues such as subsequent injury, previously unknown conditions or cumulative injury.

Millions of people apply for disability benefits each year under the Social Security Administration. Approximately 250,000 IME's are done annually to determine disability under Social Security Administration alone.

The most common reasons for independent evaluations are debilitating disorders such as musculoskeletal and psychiatric problems, followed by cardiovascular and pulmonary diseases.

An IME is an invaluable tool for Workers Compensation cases. In many states the Workers Compensation Code may require an IME after an employee sustains an injury. A common reason in this setting may be that a physician has treated the client for a long period without significant improvement, and states the client has not reached maximum medical improvement (MMI) and can't be released to work.

An employee's refusal to submit to an IME waives his right to compensation as long as he refuses. The employer covers expenses for IME including transportation costs. The employee is also entitled to regular pay for lost time from work if the employee must leave work for the examination. Employees may have their own physician present, however this is at the expense of the employee.

Confusion also exists with the term “impartial medical exam”, also called IME. An impartial exam is generally set up by the state agency when an injured worker's attending physician and the IME doctor have differing opinions and the worker and insurance carrier cannot reach an agreement.

The timing of an IME can provide clues to the reason it was done or the impact it may have. For example, if an IME is done early in the claims process, without clear medical reasoning, it may be the result of an adjuster “doing something”. Information gathered/gleaned may be limited and adversarial relationships may develop. An early IME may be beneficial when comparing with a subsequent IME, particularly in cases of fraud or malingering to help minimize losses for an insurance company. Frequently employers will require an IME every 90 days for employees who have not returned to work as part of time frame protocols.

Selecting an IME Physician
When selecting a physician to perform an IME several pertinent points should be addressed. The most important is finding a physician who will be impartial and not influenced by the interests of requesting parties. If a physician is overly biased toward the insurance company in efforts to continue the source of referrals, sound medical judgment may be questioned.

Generally, the physician chosen is of the same specialty and possesses similar qualifications as the treating physician. However if medical circumstances suggest that the specialty of the treating physician isn't appropriate, an IME by a physician of a different specialty may be helpful.

Board certification is critical not only in their area of expertise, but also certification with the American Board of Independent Medical Examiners (ABIME). This is a national organization committed to establishing national, uniform standards of competency for licensed physicians who conduct independent medical examinations. Physicians with this certification are knowledgeable in the areas of causation, disability and fitness-for-duty and provide a distinct advantage over other types of specialists when performing IMEs. ABIME's Board of Directors include well known experts from multiple disciplines who regulate the application and examination process.

In addition to national standards there may be specific state guidelines as well. The state of Washington requires that physicians performing IME must be approved examiners by the Department of Labor and Industries under WAC 296-23-2654. In Oregon there are no specific regulations regarding physicians performing IME and there are only 15 physicians in Oregon that are listed as board certified by ABIME.

The physician must also be knowledgeable regarding the American Medical Association (AMA) standards to evaluate permanent impairment. The most current basis for making this determination is The Guides to Evaluation of Permanent Impairment, 5th edition. According to AMA guidelines the percentage impairments are not intended to be used for quantifying economic benefits, but in reality this is how they are often used. The previous edition (4th) has been cited as responsible for significant errors in 80% of IME.

In addition to the professional requirements, practical aspects need to be considered. The location should be convenient to the client. Scheduling should be within a reasonable time frame. Cost should be considered. The physician's willingness to testify is also crucial. Many IMEs are now being arranged and coordinated by private firms contracted by insurance parties and attorneys that are able to use a large panel of doctors representing all the specialties and numerous convenient locations.

It's important to remember that some physicians who provide IMEs may perform several hundred annually for the insurance industry and make this service a large part of their practice. They will predictably and regularly favor the defense or insurance company against the client. They develop a reputation with attorneys involved in injury litigation. By attacking the credibility of the claimant, the supposition is that every claim is fraud and they deny pathologic conditions. If there is true pathology they will often label it preexisting.

Content of IME and What to Look For
The physician's report should include a detailed history of the injury as stated by the client, a review of prior medical records and tests, a detailed physical examination and a conclusion addressing the specifics of the injury or illness. In addition the report should state clearly the disability status, projected length of disability, potential work capabilities, need for future treatment and any comments on maximum medical improvement (MMI).

The client and attorney should receive the report within a reasonable time period. If the IME was audio taped or videotaped, receiving copies of those as well as written reports is critical. It is important to look for both missing information and contrasting information that may need further investigation.

Observations about the client that seem excessive or overdone may be indicative of physician biases. Multiple examples of the client outside of the exam room but few objective physical findings are commonly found in IME reports. These include extensive notes about the client in the parking lot or the odd clothes worn that day, but very brief, cursory physical exams.

It is important to know if impressions of x-rays were based on the films themselves, the x-ray report or what the client reports as the results. The appropriateness of the specialist chosen, given medical circumstances also needs to be addressed. If the IME was done for employment liability, it is important to know if the IME physician had an actual written job description for the regular job of the client. Lastly, asking the client for any feedback about the IME, the length of time taken, and opportunities to describe subjective complaints may be valuable.

Brief Summaries/Reviews of IME Related Cases

Green v Walker, M.D. (5th Cir. 1990), 910 F.2d 291
The issue on appeal was whether a physician performing an IME had a duty to the examinee to perform the exam with due care. The Fifth Circuit Court held that a physician did have this duty, based on a physician–patient relationship. This case has been followed or cited with approval in Daly v. United States (9th Cir.1991), 946F2d 1467; Cleghorn v. Hess (Nev. 1993), 109 Nev.544, 853 P2d 1260, and Baer v. Regents of University of California (N.M. App. 1994), 118 N.M. 685, 884 P.2d 841.

Webb Plaintiff and Appellant, v. T.D., D.C., R.K.S., M.D.; and C.H.A., M.D., 97-255 Supreme Court of Montana (1997)
The issue on appeal was whether a physician performing an IME at the request of a third party has a duty of care to the examinee, based on a physician-patient relationship. The District Court ruled that an IME does not compromise a doctor-patient relationship and that as such no duty to the examinee exists to exercise reasonable care. The Supreme Court of Montanaoverturned this decision, stating that the IME does create a relationship and the physician has a duty to exercise the level of care consistent with his/her professional training and expertise. The physician is responsible to make this information available to the examinee if the findings disclose an imminent danger of physical or mental well being.

Somers v. SAIF, 77 Or App 259 (1986)
The Court of Appeals ruled that when medical experts disagree, more emphasis should be placed on opinion that are well reasoned, and based on the most complete information.

Suzanne Robertson, 43 Van Natta1505 (1991).
The Court of Appeals ruled that the term “objective findings” does not solely mean physical verifiable impairments. Such a finding may also be based on the physician's evaluation of the worker's subjective complaints.

U-Haul of Oregon v. Burtis, 120 Or App 353(1993).
The Court of Appeals ruled that medical treatment for a pre-existing degenerative condition was compensible if a compensible injury caused the preexisting condition to need treatment, as long as the injury was the major contributing cause of the need for treatment.

SAIF Corporation v. Walker, 145 Or App 294 (1996).
The Court of Appeals considered the meaning of the change in definition of an aggravation in SB 369. The court reviewed the legislative history and determined that a symptomatic worsening is not sufficient to establish aggravation; instead, proof of pathological worsening is required. (The Supreme Court affirmed the decision)

How Century Consulting LLC Can Help With IMEs

Perhaps you are one of many busy attorneys with little time to review in depth medical records and IME proceedings. Let the Legal Nurse Consultants at Century Consulting LLC assist you in finding qualified, competent professionals who will provide impartial, thorough examinations. They can attend an IME with your client to avoid the common traps and pitfalls. They can also review pertinent records both before and after the examination looking for missing information or critical inconsistencies.

1.) American Board of Independent Medical Examiners  (http://www.abime.org/) National Directory 3/30/01

2.) Boynton, B. “Analyzing IME Reports for Workers Compensation Cases” National Medical-Legal Journal 1996; 4: 1-7

3.) Bronfamn, C. “IME Affect Case Outcomes” National Medical-Legal Journal 1995; 3: 3-7

4.) Mazanee, DJ “The Injured Worker: Assessing `Return –to-Work' Status” Cleveland Clinic Journal of Medicine 1996 3: 166-71

5.) Monitoring the Key Components of Legislative Reform, 5th ed. Oregon Workers' Compensation; January 2001

6.) Ranavaya, M. Ambroz, A. & Ambroz, C. “The Independent Medical Examination: Are They Really Necessary?” Disability Medicine 2001; 11-13

7.) Swihart, L. The Independent Medical examination for Injured Workers National-Medical Legal Journal 1994; 2:1-6

8.) The Guides to Evaluation of Permanent Impairment, 5th ed. Chicago, IL: American Medical Association; 2000

9.) Washington Medical Examiner Regulation (http://204.254.113.225/example/regs/WAmedexam.htm) 3/31/01)