Independent Medical Exams (IME)

Independent Medical Exams (IME)

By Dennis Kurth, Attorney

Snow, Carpio & Weekley

Independent medical exams (IME) can be problematic for injured workers receiving workers' compensation benefits.  Insurance carriers providing compensation and medical benefits have a right to an IME to assess a claimant's condition from time to time under the statue and the rules.  They often avail themselves of such right when a claimant's treatment and recovery are not progressing at a suitable (to them) pace.

Claimants have only very limited rights to object to IME's and only three days after receipt of an IME notice to file their objections with the Industrial Commission under the Rules.  The Industrial Commission rarely issues a Protective Order against an IME especially if the objection is solely related to the identity of the particular examiner.

Due to the extremely short window of time for a claimant to file a written objection (Motion for Protective Order) to an IME, many claimants, especially those unrepresented by counsel, simply bypass the opportunity to object.  Others, thinking that such exams are easily changed by a phone call to the examiner or the agency scheduling the IME, find out too late that they are not easily changed at all.

Irrespective of the fact that workers' compensation carriers keep recycling the same tired group of friendly examiners to the great detriment of claimants who are awaiting approval for surgery or other procedures, just innocently missing one of these exams can result in the carrier unilaterally suspending both compensation and medical treatment and assessing costs of the IME which can run from a couple thousand dollars for an orthopedic or spinal surgeon to several thousand dollars if a psychiatric or psychological exam is missed.  In many of these situations the examiners are paid guaranteed fees if the claimant doesn't show up.

Fortunately for aggrieved claimants, the appellate courts in Arizona have put a humane interpretation on the statutory penalties for missing IME's and the carriers must prove that the claimant intentionally rather than accidentally missed the IME to be able to impose any penalties at all.  Enlightened members of the Industrial Commission judiciary usually limit cost assessments to exactly what the carrier paid the examiner for a no-show fee or what a typical first examination would cost with that type of specialist.

Even if a suspension is ultimately found to be unjustified however, it can take months in litigation to undo the effects of the suspension and get compensation and medical benefits reinstated imposing great financial hardship on the claimant's family which might already be suffering mightily with the breadwinner being out of work.  Consequently, claimants facing IME notification are best advised to seek legal advice immediately upon being notified of an IME.

If you or someone you know has been injured at work or suffers from a medical condition or injury that will keep them from working for 12 months or longer, contact Snow, Carpio & Weekley at 855-325-4781 for a free consultation statewide. You may also learn more about us by visiting our website at www.workinjuryaz.com.

Independent Medical Examinations by Attorney Nick Wearne

Independent Medical Exams

By Nick Wearne, Attorney

In the world of workers' compensation law there are two types of medical care, active care, and supportive care.  In the months following a worker’s injury you will receive active care. 

Active care is medical treatment designed to improve your medical condition.  In some cases an injured worker will undergo active care until they are back to 100% functioning capacity.  This is what we hope happens for all of our clients.  Unfortunately, in many cases injured workers will never reach 100%.  Instead, they plateau at some point in their active care, and stop getting any better.  Some people experience this plateau at 90%, others stop improving at 50% or lower and their earning capacity is severely limited. 

The moment when you stop getting better despite medical treatment is called ‘medically stationary.’  Once you have become ‘medically stationary,’ medical care becomes supportive.  Supportive care is not intended to improve your medical condition, but to keep it stable.  Examples of supportive care include pain medicine, epidural shots, physical therapy, and more.

When an injured worker becomes ‘medically stationary and begins receiving supportive care his/her rights change and often times the worker will be entitled to less compensation then they were entitled to during active care.  Insurance companies that are paying out on your claim want you to reach ‘medically stationary” as soon as possible.  For this purpose insurance carriers will often schedule what is called an ‘Independent Medical Examination’ (IME). 

IMEs are scheduled with a physician of the insurance company’s choice.  Such physicians are normally more than willing to give an opinion that the worker has reached ‘Maximum Medical Improvement,’ thus allowing the carrier to reduce a worker’s benefits.  While perhaps hard to believe, it is the insurance companies right to schedule these appointments and you must attend them.  Failure to attend an IME could result in complete termination of your benefits.

Too often, injured workers who are still improving get their cases closed out and their medical care cut short because of mandatory IMEs.  At Snow, Carpio, and Weekley we fight unwarranted benefit reductions that result because of an IME, we fight to get our clients back in active care, and we fight to get you back on the path to full recovery.  If you feel your benefits have been, or will be, cut short due to an IME, you should call an experienced workers' compensation attorney as soon as possible.

If you or someone you know has been injured at work or has a medical condition that will prevent them from working for 12 months or more, call Snow, Carpio & Weekley toll-free at 855-325-4781 to schedule a free consultation in person at one of our offices around the State or over the phone. You can also find out more about our firm by visiting our website at www.workinjuryaz.com.

What happens if I miss an IME set up by the insurance carrier?

What happens if I miss an IME set up by the insurance carrier?

By Diana Robles, Associate Attorney

Arizona law provides that the insurance carrier can periodically set up an independent medical examination (IME) for you, at a time and place reasonably convenient, by a doctor of its choosing, so long as they give you 14 days advance notice of the appointment. If you miss an IME appointment the carrier can suspend your medical and temporary compensation benefits. In addition, many times the carrier will ask for sanctions to be assessed against you. They often ask that you reimburse the cost of the IME or that they be allowed to take a credit against future compensation owed.  

An IME can cost several thousand dollars.  If you have missed an IME appointment and receive a Notice of Claim Status requesting reimbursement or a future credit against temporary compensation, you only have 90 days from the issuance of the Notice to protest it.  Our firm will argue that these exorbitant costs should not be assessed to the claimant. 

However, it is very important to make it to these appointments and let the carrier know if there is a good reason why you can't attend the appointment. Of course, emergencies occur and if something happens which prevents you from attending the IME you may need to show proof that there was an emergency which prevented you from being at the IME.  More importantly, is the fact that the carrier may accept the opinion of its consulting doctor and base change in your claim status, or the closure of your claim, on that doctor’s opinion.  

Remember, it is your responsibility to understand all notices. If you disagree, you must file your request for hearing with the ICA within 90 days from the date of the Notice of Claim Status or the Notice becomes final.

If you or somebody you know is injured on the job or suffering from a disabling condition, you can call 855-325-4785 for a free consultation. Consultations are free and can be done either in person or over the phone. You may also visit our website at www.workinjuryaz.com for more information about our firm.

Tiebreaker IME's in Arizona Workers Comp Cases

One issue that is frequently litigated in Arizona work injury claims is whether or not additional medical care is necessary or not and whether or not it is related to the industrial injury. Usually there is a treating doctor on the side of the applicant wanting to perform additional care and a defense medical expert on the side of the carrier saying either that no further care is needed, or that any additional treatment is not related to the work accident.

The problem with litigating these medical issues is that they can often take forever to litigate, often up to 10 or 12 months. Meanwhile, the injured worker is suffering and not receiving any compensation. One solution that I often recommend to my clients is proposing a "tiebreaker" IME to the carrier/employer's attorney. A tiebreaker is a truly "independent" medical exam where the physician is agreed to by the two parties and a joint letter sent explaining the tiebreaker agreement.

There are positives and negatives about these kinds of agreements. On the positive side, the injured worker gets a decision about their claim much sooner and it is made by a doctor, not a judge. On the negative side, if the doctor indicates that no further treatment is needed, the injured worker is bound by that opinion.

Tiebreaker IME's aren't always the best option, but in cases where I feel that the diagnostic testing is strong and my client is very credible, I'm comfortable recommending them as an alternative to the lengthy litigation process.

Chad T. Snow and his associates at Snow, Carpio, and Weekley are workers compensation attorneys in Phoenix and Tucson Arizona. Their office can be reached at (602) 532-0700 or (520) 647-9000.

Waddel's Signs - Defense Doctors are the Real Fakers

One of the most common techniques that Defense IME doctors use to discredit injured workers is the use of "Waddell's Signs".  Doctors hired by the insurance carrier will say that an injured worker has positive Waddel's signs to show that they are exaggerating their symptoms or outright faking their injuries. 

The test is named after a physician researcher, Gordon Waddell, who originally intended it to be used as a technique to determine appropriate patients for back procedures such as discography.  It consists of several physical tests including axial compression (pushing down on the top of the head, which shouldn't cause low back pain), distracted straight leg raising, overreaction to stimulus, and complaints of pain in areas that shouldn't have pain from the injured body part. 

A little research, however, has given me ammunition to combat this technique.  First, my partner found an obscure reference in the AMA Guides to the Evaluation of Permanent Impairment that indicates that the use of Waddell's Signs is inappropriate in non-Anglo patients.  That counts out about 80% of my clients. 

Also, a quick Wikipedia search showed that numerous recent medical studies have criticized the use of Waddell's signs and show that they have been misused by the medical community.  For example, a 2004 study by Fishbain showed that In a 2004 review, Fishbain, et al. concluded, "there was little evidence for the claims of an association between Waddell signs and secondary gain and malingering. The preponderance of the evidence points to the opposite: no association".

I can't wait to spring those on the next sheisty defense IME doctor who's trying to paint my client out as a faker. 

Chad T. Snow is an attorney who has handled over 5,000 hearings at the industrial commission of Arizona for injured workers.  He has offices in Phoenix and Tucson, Arizona and handles exclusively Arizona workers compensation claims.  He can be reached through his firm's website, Snow, Carpio, and Weekley.

What is an Independent Medical Examination and Do I Have to Go?

One of the most effective tools that the insurance carrier has to control an Arizona workers compensation claim and terminate benefits is an "Independent Medical Examination".  Usually, there is nothing "Independent" about it.  In fact, we call them DME's or "Defense Medical Examination".  The doctor is a doctor who is chosen by the insurance carrier and is normally more than willing to give whatever opinion is best for the carrier.  There are rare exceptions - if your IME is scheduled with Terry McLean, M.D., Jeff Scott, Sanjay Patel, Peter Mitchell, Peter Campbell, and a handful of others, we have found them to be very independent doctors who give honest opinions.  However, the great majority of IME's are done by doctors who give opinions that are beneficial to the carrier. 

So the question becomes:  do I have to attend an IME?  The answer is usually yes.  An injured worker usually has to submit to an exam by a company doctor once after an injury "to ascertain the character and extent of the injury occasioned by the accident."  (ARS 23-908(e)).  After that initial visit, the injured worker is usually free to choose his or her own doctor.  However, the carrier is permitted to have an IME "from time to time" thereafter to check up on the condition of the worker.  An injured worker who refuses to attend an IME or obstructs it can have their benefits suspended.  "From time to time" usually means about once every six months in our experience. 

Bottom line:  if the carrier is sending you for an IME, it is probably to get your claim closed out in the manner that most benefits the insurance carrier.  You should call our experienced Arizona workers compensation attorneys at Snow, Carpio, and Weekley as soon as possible.