James A. Pitts
Kelley, Pitts & Knurr, S.C.
6800 Washington Avenue
P.O. Box 085600
Racine, WI 53408-5600
X. Independent Medical Examinations
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 overall 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 today 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) 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.
(a) If the patient excessively cringes, grimaces, or otherwise displays unnatural responses to sensory, motor or reflex tests, the doctor will suspect exaggeration.
If you have questions, please do not hesitate to contact Attorney James A. Pitts at 262-886-8240, or e-mail mailto:email@example.com
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