Unjust Treatment: 'Independent'
Medical Examinations & Workers Compensation in New York
Report prepared in 1998 by the New York State AFL-CIO and the New York
Committee for Occupational Safety and Health. For more information on the origin of
this report, click
Each year approximately 500,000 occupational
illnesses and injuries are reported to the New York State Workers'
Compensation Board. Of these, several thousand claims for occupational
disease are challenged by workers' compensation insurance carriers for
reasons that frequently defy close medical analysis and too often defy
With millions of dollars in profit at stake,
- challenge valid occupational disease
claims, which results in workers often failing to pursue their cases
or eventually settling for less than they are entitled to;
- claim that many workers are less disabled
than they are or that they are not disabled at all; and
- raise issues contradicting workers'
claims that their injuries and illnesses are a result of work.
As a consequence, injured and sick workers
are often forced into prolonged wrangling with insurance companies in an
attempt to get their claims established. The process is so tortured,
convoluted and demeaning that many workers do not file for compensation
or become so discouraged that they fail to pursue their valid claims.
Rather than attempt to use the workers' compensation system, many
workers use their own health insurance -- if they have any -- to get
needed medical treatment. Many others rely on welfare or social security
disability. In either case, the insurance companies and employers
externalize the costs of job-related injuries and force the public to
pick up these expenses through taxpayer-funded social welfare programs
and higher medical insurance premiums.
What is particularly unfair is the routine
challenge by insurance carriers of workers' claims for occupational
disease and frequent disputes over the degree of workers' disabilities
in cases that have already been established. The challenges over
occupational disease can often mean, de facto, the cutting-off or
slashing of wage-replacement benefits and medical treatment before any
hearing takes place.
In New York State, a pivotal point for
injured workers filing workers' compensation claims is the medical
evaluation. When a worker is initially injured or made sick at work, the
worker notifies the employer, sees a doctor for diagnosis and treatment,
and files a claim. Based on the treating physician's report, workers
will be entitled to receive wage-replacement benefits and reimbursement
for medical treatment for injuries and illnesses related to
Once the claim is filed, the insurance
carrier has the right to demand that the injured worker see a doctor
chosen by the insurance company. This speciously named evaluation is
called an Independent Medical Examination, or "IME." However, IMEs are
anything but independent and they frequently don't appear to be
"medical" examinations of any kind. They are paid for by -- and
conducted on behalf of -- insurance companies, self-insured employers
and the State Insurance Fund, a quasi-state agency that provides
workers' compensation insurance for approximately 40 percent of the
state's employers. Moreover, IMEs are used by these interested parties
as ammunition to challenge claims, lawsuits and the evaluations of
injured workers' treating physicians.
Claimants must attend IMEs or risk hampering
their own cases. In particular, workers receiving wage-replacement
benefits and/or medical treatment may have their benefits slashed or cut
off entirely if they fail to appear.
The results of this initial evaluation
conducted by Independent Medical Examiners are critical for injured
workers attempting to establish their cases. Based upon the initial IME
evaluation, the insurance company can unilaterally, without a hearing,
and with no prior notice, slash or completely cut off the
wage-replacement benefits and medical treatment an injured worker is
receiving. Although the injured worker can later dispute such actions at
a hearing, it can take between six weeks and six months for such a
hearing to be scheduled after receipt of notice from the insurance
company that benefits are being cut. In New York, benefits can be
cut to as little as one-sixth of a worker's average weekly wage or $40
Consequently, many workers are forced back
to work prematurely, often re-injuring themselves, aggravating their
injuries or worsening the illness they contracted. Other workers are
driven onto a variety of taxpayer-funded programs such as social
security and welfare.
It is clear that IME reports frequently
downplay the ailments of injured and sick workers. This should not be.
Based on interviews with scores of injured and sick workers, review of
typewritten IME reports, and discussions with lawyers familiar with the
workers' compensation system, occupational health physicians, and
advocates for injured workers, this report will show that:
- There are virtually no laws or
regulations governing IMEs in New York State. There is, for example,
nothing to prevent a doctor without a license to practice in New York
State from conducting an IME.
- Most IME examinations are cursory at
best. Not one worker interviewed for this report described an
examination lasting more than 20 minutes. Many workers said their
exams were five minutes or less.
- The IMEs are not always conducted in
traditional medical settings, and are often a significant distance
from the claimant.
Information in final IME reports isn't always
consistent with the IME doctor's own examination. Many doctors work
for IME brokerage firms, which have been found to alter the findings
of doctors when generating final reports and which are now the target
of a fraud investigation by state authorities.
- Even when findings are consistent, the
quality of the reports is extremely uneven. Some IME doctors use
boilerplate reports which are virtually the same from one patient to
the next. There have even been cases where there has been a failure to
change the name in the body of the report.
- Claimants are not permitted to bring
anyone to their IMEs except their own treating physician. Doctors
conducting IME's routinely violate section 206A of New York State's
Labor Law which requires notification of claimants that women have the
right to have a female doctor or a female of their choosing present
when an examination is conducted by a male doctor.
- Many non-English speaking claimants
describe significant difficulty communicating with IME doctors.
- Most doctors performing IMEs appear to
have little knowledge or training about work-related illness.
- IME doctors frequently underestimate the
level of claimants' disabilities, a trend reflected by the decisions
of administrative law judges who frequently find higher levels of
disability than those found in IME reports. Claimants rarely see
reports until their hearing -- if they see them at all. As a result
they have no due-process rights or opportunities to rebut the IME
This report is intended to stimulate thought
and action about effective and humane policy-making with regard to the
IME process. It begins by summarizing the examinations themselves. It
then reports on the role of IME doctors. A discussion follows of the
quality of exams provide.
The report also presents the stories of many
injured workers. Some are told in the words of the workers themselves,
some are abstracted from their words, and many more are integrated
within the text. The goal is to create something of a composite portrait
Finally, the report considers the financial
and personal impact of the existing IME process and makes proposals for
transforming it into a more independent, democratic and equitable
What is an Independent Medical
The first thing to know about a so-called
Independent Medical Examination (IME) is that it is neither independent
nor a bona-fide medical examination.
Although IMEs purport to be independent, it is apparent from the
pattern of behavior and the relationship of IME doctors to insurance
carriers that this is not the case. The IME itself is conducted by a
doctor who has been hired by a workers' compensation insurance company,
a "self-insured" employer (a company providing its own workers'
compensation insurance) or the New York State Insurance Fund -- parties
with a financial interest in minimizing the extent of injuries and
illnesses suffered by workers.
The IME is nothing like a medical exam.
According to interviews with injured workers and occupational health
physicians, the typical IME is vastly different than the type of
thorough examination needed to provide a sound basis for important
decisions about wage-replacement benefits and medical treatment for
injured and sick workers. Exams are generally limited to:
- completion of a medical-history form by
- a review of available documents provided
by the worker's ("treating") physician;
- a brief medical exam during which the IME
physician asks questions about symptoms, treatment previously
received, whether the medical condition is improving and, in some
cases, during which the IME physician may perform a limited physical
- and the recording of impressions, either
in writing or on tape-recorder, regarding the extent of injury or
illness, the extent of disability, and what treatment, if any, is
The IMEs ostensibly provide insurance
carriers with their own "independent" medical evaluations of workers'
compensation claimants. In other words, the exams address whether or
not the injured or sick worker is as disabled as the injured workers'
doctor says and whether the worker needs ongoing care. But according
to one attorney familiar with the system, most IME doctors will only be
rehired by insurance carriers if they consistently disagree with the
evaluation of the treating physician.
IMEs are also used to make determinations
utilized by insurance carriers in connection with paying medical bills
and settling, arbitrating and litigating claims over wage-replacement
benefits, addressing questions such as What is the final degree of
disability? In addition, IMEs are intended as a safeguard against
fraudulent suits, or claims without merit. In other words, is this
claim valid and genuine?
The IME is not intended to
provide injured and sick workers with medical treatment or to give
medical advice. Indeed, workers can refuse medical advice from the
The second thing to know about an IME is
that there are no regulations that govern the exam. According to representatives of the New York State
Health Department and the New York State Workers' Compensation Board,
there is currently no language in the New York State Workers'
Compensation Law referring specifically to IMEs. Without rules and
regulations, injured workers, who are often in a vulnerable condition
both medically and financially, are subject to abuse, as well as
arbitrary and capricious treatment by IME doctors who are financially
tied to the insurance carriers.
The entire exam can be as brief as five
minutes, and typically takes no longer than 15 minutes. In fact, not one
worker interviewed for this report described an IME lasting more than 20
minutes, with the exception of psychological exams. Also reported were
exams that consisted of nothing more than a doctor reviewing the
claimant's drivers license.
Workers are often given little notice about
their appointments, which frequently require an hour or more of travel,
and which they must attend. Many injured workers, because of their
medical condition, find travel to and from the IME difficult and taxing,
especially if the evaluation is scheduled at an off-hour and/or at a
considerable distance from the injured worker's residence . Such
difficulties are yet another disincentive to workers who wish to pursue
their claims and establish their cases.
As a result of the IME evaluation, claimants
whose cases have not been established may have their wage-replacement
and medical benefits cut off or diminished dramatically -- without a
hearing or chance to rebut the findings of the IME . In these cases, the
IME determination of the extent of disability (whether the impairment is
mild, moderate, marked or total) allows the insurance carrier to
unilaterally cut, without a hearing, an injured worker's
wage-replacement benefit and/or prevent an injured worker from receiving
medical treatment prescribed by his treating physician.
Thus, a worker who was earning an average
weekly wage of $600 and has been out of work for six weeks with a back
injury, under supervision of his or her treating physician, would
collect $400 per week in compensation for a temporary period. If the
doctor who conducted the IME found the worker sustained only a mild
partial disability, the workers' wage-replacement benefit would be cut
to approximately $100 per week. The worker would then have to wait for a
hearing at which he or she would present evidence that the evaluation
conducted by the IME doctor underestimated his or her disability -- a
wait which can be six weeks at the shortest and often as much as six
When the hearing is finally scheduled,
injured workers continue to be at a disadvantage. Interviews with
occupational health physicians and injured workers, as well as testimony
presented at hearings before the state legislature, reveal that IMEs and
IME reports are often considered with equal -- and in some cases greater
-- weight than the much more comprehensive exams which have been the
basis for diagnosis and treatment by the claimant's treating physician.
As one occupational health doctor said, "The last diagnosis is usually
the one the [workers' compensation] judges go with." Consequently,
workers frequently are advised to see their own doctors after seeing the
IME to insure that they have medical evidence to contest IME's
evaluation. This is sometimes paid for at their own expense.
In those cases where the IME doctor has
determined that the medical treatment prescribed by the treating
physician is not needed, medical treatment for the injured worker is cut
off by the carrier. This can mean the difference between a permanent or
temporary disability and whether or not a worker is forced back to the
job, where injuries and illnesses can be aggravated. Once back on the
job, injured and sick workers are also more likely to miss work due to
illness. This not only results in costs to employers that should be
easily preventable, but it perpetuates a cycle of pain, suffering and
poverty for many working men and women.
Who are the IME Doctors?
New York State's Workers' Compensation Law
stipulates that medical exams must be conducted by "qualified
physicians" or by a "registered nurse or other persons trained in
laboratory or diagnostic techniques" who are under the "active and
personal supervision of an authorized physician." [Subdivision 4, Section 13 a of the Workers'
Compensation Law of New York State, as amended by chapter 922 of the
laws of 1990.] Every worker
interviewed for this report was seen by a physician.
Typically, a doctor earns between $100 and
$400 per exam, but more complex cases carry higher fees -- sometimes
reaching $1,000 -- according to physicians interviewed for this report.
"For doctors, IMEs ...mean quick, easy money," according to a January 5,
1997 article in the New York Post entitled "Doctored Diagnosis: How
Altered Medical Reports Could Mean Lower Benefits for You." IMEs are
highly profitable freelance assignments for some doctors. For others,
however, they provide the bread and butter of their practice.
["Doctored Diagnosis: How Altered
Medical Reports Could Mean Lower Benefits for You," by William Sherman,
The New York Post, January 5, 1997- January 7, 1997.]
IME doctors can also earn modest sums for
appearing at hearings. Because medical evidence is critical to many
cases, live testimony by both treating and defense physicians is the
rule at formal hearings at which medical evidence is required. The
Workers' Compensation Board encourages the use of medical depositions,
but in practice they are rare.
One New York City physician maintained that
there are two broad categories of IME physicians: those who "don't
believe in work-related diseases" -- whose orientation results in the
minimizing of disabilities, and those who "couldn't make it in regular
This doctor and others also stated that
physicians with thriving private practices generally do not have enough
time -- or the desire -- to perform IMEs.
According to occupational health physicians
interviewed for this report, in some locations, virtually all available
doctors in certain areas of specialization conduct IMEs; in other areas,
many doctors never perform an IME. In rural or less populated areas of
New York State, according to one doctor from upstate New York, "there
are a lot fewer specialists to recruit from," and therefore more
likelihood that II everyone in town II will be performing
"What strikes me is the incentive for the
occupational physician in the community: if they are going to
participate [in the conducting of IMEs] they will be doing it on behalf
of the insurance carrier. That pool is expanding, whereas the pool of
doctors for workers to see appears to be shrinking."
Doctors, attorneys and injured workers
interviewed for this report expressed concern about the lack of specific
legal criteria to define who can and cannot perform an IME . They
contend this lack of specificity creates opportunities for incompetent
doctors to perform the exams.
Cases have been reported of doctors from
other states being flown in to conduct IMEs -- even though they have no
license to practice in New York State. Moreover, a number of workers
have reported being referred to doctors that they later discovered had
been disciplined by authorities in New York and other states, according
to information compiled by Injured Workers of New York, a nonprofit
In Buffalo, the group contends, carriers are
still using one IME physician who was:
- forced to surrender his license in
- convicted in New York of Medicaid fraud
and mis-prescribing drugs,
- fined and disciplined in Pennsylvania for
a larceny conviction, and was
- disciplined in North Carolina for immoral
or dishonorable conduct, unprofessional conduct, for conviction of a
crime involving moral turpitude, and for obtaining medical practice by
false representations. [Questionable Doctors Disciplined by State and Federal
Governments: New York, by Sidney Wolfe, MD, Kathryn Franklin, Ph.D.,
Phyllis McCarthy, Alana Bame and Benita Marcus Adler, Public Citizen
Health Research Group, 1998.]
Several interviewees also complained about
conflicts of interest that go unchecked. "There are certain academically
situated doctors who seem to be willing to take money to play the
insurance carrier's position," one doctor noted. "It seems workers
should be able to expect more neutrality than that."
Who are the IME Brokers?
Insurance carriers used to maintain long
lists of private doctors who were on call to perform IMEs. However, as
workers' compensation claims continued to mount, carriers began
employing IME brokerage firms. Because carriers must decide quickly
whether to honor workers' compensation claims, doctors are under
pressure to submit their findings as soon as possible. Consequently, IME
brokerage firms are frequently used to speed the process, with doctors
phoning in their examination notes to administrative and clerical staff,
who complete reports, signing doctor's names and submitting the findings
to the insurance company. According to published reports in the
Boston Globe, the Buffalo News, the New York Post
and other publications, most brokerage firm staff who completed reports
had no medical training whatsoever.
Today, independent medical examination
companies act as go-betweens, scheduling doctors to examine men and
women who have filed workers' compensation claims. They are also
responsible for generating doctors' reports and interacting with
insurance carrier claims examiners. In this hugely profitable business,
doctors' fees range from less than $100 up to $1,000 per exam, according
to published reports. Their final reports influence decisions worth tens
of thousands of dollars to the insurer and to injured and sick workers.
["Disabled or Not? State Probes
Alleged Fraud by Medical Examination Firms," by Fred 0. Williams,
Buffalo News, February 16, 1997.]
Most experts agree that, because IME firms
are paid by insurance companies, or self-insured employers, they have an
incentive to play down job-related injuries. Widely published reports
also reveal that some of these firms routinely change the doctors'
wording, or press physicians to revise their reports.
Needless to say, the impact on the
disability awards received by injury and illness victims is
incalculable. These alterations result in denial, delay or diminishment
of workers' compensation payments for crucial treatment, not to mention
One IME brokerage firm, Medical
Determinations of New York, was found to have altered reports on a vast
scale, according to a series of articles in the New York Post in
February 1997. The company provided more than 40,000 IMEs annually for
more than 600 insurance companies, government agencies and self-insured
employers. These altered reports to insurers and self-insured employers
downplayed "the impact and extent of injuries to people involved in
automobile accidents, workers' compensation claims and disability
cases.["Doctored Diagnosis: How
Altered Medical Reports Could Mean Lower Benefits for You," by William
Shennan, The New York Post, January 5, 1997- January 7,
The Post story, based on a review of
internal company documents, reported that the State Insurance Fund
"suspended its multimillion-dollar dealings" with Medical Determinations
in July 1997 after discovering that company employees were signing
doctors' names to reports.
- The Post also found that:
Original reports were never seen by patients, or their lawyers or
doctors. When they requested a copy, they were given the final version
prepared by the company -- not the original doctor's version;
- Doctors were unaware of changes made on
their reports; and
- Changes were made by staff members, some
of whom had no medical training.
["Doctored Diagnosis: How Altered Medical Reports Could Mean Lower
Benefits for You," by William Shennan, The New York Post, January 5,
1997- January 7, 1997.]
Another company, IME Inc., was also found to
have produced conflicting reports in one recent case in Buffalo (see The Case of
Mary Jeffords, below). In this matter, the worker received one
evaluation, signed by the doctor, which declared that she was totally
disabled, and another version declaring her only moderately disabled and
capable of working part-time. The company was also discovered in this
case to have originally scheduled the worker to see a doctor who was
punished in 1985 for Medical Fraud.
[Questionable Doctors Disciplined by State and Federal Governments: New
York, by Sidney Wolfe, MD, Kathryn Franklin, Ph.D., Phyllis McCarthy,
Alana Bame and Benita Marcus Adler, Public Citizen Health Research
Complaints filed by injured and sick workers
who have obtained questionable IME documents have been the subject of an
investigation by the state Insurance Department, the Workers'
Compensation Board and the state Attorney General's office for more than
a year. Investigators say the probe is focusing on the activities of the
"independent medical examination" companies. "We are investigating some
complaints from the Buffalo area as well [as New York]," said Donald
DeAngelis, fraud inspector general for the state Workers' Compensation
Board. ["Disabled or Not? State
Probes Alleged Fraud by Medical Examination Firms," by Fred 0. Williams,
Buffalo News, February 16, 1997.]
The discrepancies described above raise
serious questions about the manner in which IME brokerage companies
transcribe and deliver information from doctors to the insurance
carriers that pay them, and how insurance companies use the final
Frequently Reported Problems with
While most workers interviewed for this
paper reported that they had visited doctors in legitimate medical
offices, several indicated that they had been "examined" in settings
that were in some cases unorthodox, and in other cases, entirely
inappropriate. For example, one-worker reported being examined by an
elderly doctor in a dark apartment on the Upper West Side of Manhattan,
with no one else in the apartment. Moreover, at recent hearings before
the New York State Assembly, workers described participating in IMEs
conducted in such non-clinical settings as school classrooms and
In addition, some workers reported having to
travel more than an hour for an IME, requiring either extensive use of
public transportation or very long drives. For a worker who is injured
or sick, requirements to travel such distances become yet another
barrier to pursuing their claim.
While most IME exams reportedly last between
10 and 20 minutes, some workers described exams that were extremely
brief. One warehouse worker, for example, said the IME doctor looked him
over but never conducted a physical examination "with his hands. " The
doctor then reviewed the diagnosis of the treating physician and told
the worker he was "fine." The entire process lasted five
By contrast, treating physicians may spend
up to an hour or more with patients.
Many of the workers interviewed for this
report described overt hostility from doctors -- hostility that appeared
to be without provocation. The workers depict a system which many
contend presumes they are frauds until they are proven innocent. One
worker recounted hearing a patient who was being seen by the IME doctor
being badgered, with the doctor finally yelling "You're not really
sick!" Examples of similar contempt -- and sometimes outright
belligerence -- abound:
- A 52-year-old warehouse worker with a
herniated disk arrived for his IME using a cane and having difficulty
walking or sitting for long periods. The first thing he reported his
doctor said to him was, "You're fine. When are you going back to
work?" He receives $246.74 per week.
- A graphic artist with severe RSI symptoms
reported that when she first arrived for her IME, the doctor "seemed
to have some sort of attitude" and, when she described her pain, he
"waved his hand, like, 'So What?'"
- A 63-year-old garment worker suffering
from a torn rotator cuff and tendinitis, waited three hours for his
IME, who examined him for five minutes without speaking and then said,
"When are you going to return to work?"
- A pleating machine operator from the
Bronx arrived for his IME was deliberately put on the spot. The first
question he was asked was "If I gave you 100 and took away six, how
much would you have left?" His award was reduced from $202 to $125 per
- A social worker suffering severe back
problems was asked by her IME physician -- who she described as
"extremely drunk and reeking of alcohol -- about her medical care:
"Can't you get an American doctor?" The doctor's license was later
Not one worker interviewed for this report
said that they had seen an IME final report in advance of their hearing.
Most never saw them at all. As a result, the workers and their treating
doctors had no opportunity to thoroughly review the insurance carrier's
evaluation of the degree of disability before the hearing. Reports
generated by the IME doctor become the basis for decisions made by the
insurance carrier -- decisions which in some cases are unilaterally
implemented without consultation with claimants and without giving
claimants prior notice.
Several workers reported making an attempt
to either tape-record their examinations or bring a witness to observe
the proceedings. In each case a hostile confrontation ensued. In one
case, a worker brought her attorney to the exam despite the protest of
the IME doctor. In what appeared to the worker to be a retributive act,
she was told by the doctor that, despite severe symptoms of repetitive
strain injury and diagnostic tests (e.g. electromyographs, EMGs) that
confirmed the existence of a disabling ailment, she was able to return
to work "immediately" and had no basis for a workers' compensation
Since there are no regulations governing the
exam, claimants have no right to bring anyone other than their treating
physician to the IME exam, which effectively precludes witnesses to the
IME. Not even spouses are allowed to attend. Section 206A of the New
York State Labor Law requires that female workers be notified that they
have the right to have a female doctor or female observer present when
they are examined by the male doctor. We know of not one instance where
an IME has complied with the law, nor has the New York State Workers'
Compensation Board taken any initiative to notify IMEs of their
obligations under the law. Needless to say, the Board has never enforced
this provision of the law.
Several workers described and documented in
great detail the altering of a doctor's original IME report. Some of
these doctored reports were generated by IME brokerage companies, others
were generated by doctors themselves. In one case, a patient experienced
the altering of reports twice, by two different doctors, first in 1987
and again in 1997. In the latter instance, the patient, a former
salesman who had been struck by a 240-pound floor display while at work
in 1985, was continuing to describe back pain so severe that the
doctor's IME report stated he recounted "difficulty doing activities
such as washing dishes and washing his hair."
The IME's report, dated August 19, 1997,
concludes that "the prognosis for improvement is unfortunately
extraordinarily limited at this time." Yet, in a letter to the insurance
carrier's attorney written on August 26, 1997, the same doctor wrote "it
is very difficult to attribute a percentage to the various factors
present in Mr. Johnson's inability to return to the work force" and that
the patient's ailments no longer appeared to be physical, but
psychological. [Correspondence with
Linza Ford, Injured Workers Coalition of the State of New York, May 13,
1998 and copies oftyped IME reports and related correspondence.]
The Case of Mary
Mary Jeffords has two steel rods and four
screws near the base of her spine and uses a wheelchair to get around.
She also has retinal scarring in her eye, and nerve damage in her arms
-- all the result of an on-the-job assault in 1987. Her injuries stem
from an attack at the hands of a psychiatric patient in the Long Island
group home where she worked as a supervisor.
After she was examined by an IME doctor, two
versions of the report about her condition surfaced. One was used to
assert that her disability was only a "moderate" -- not a "total" --
disability, enabling her to work part-time. The other, signed by the
same doctor, declared her to be totally disabled. The reports were
prepared by an IME company.
When Jeffords brought the
discrepancy to the attention of Liberty Mutual Insurance Co., the
insurance company covering her case, the company denied knowing about
the total disability version of the report. When Liberty pressured the
IME brokerage company, IME Inc., for an explanation, the firm provided a
letterhead document, signed by the IME doctor and dated August 23, 1996,
stating that he altered the last page of the original report after
reviewing his notes and listening to his own dictation. (He did not,
however, alter the first six pages of the report, which document in
great detail Jeffords' total disability. ) Yet the precise reasons for
his changed assessment remain unclear. After her claim was appealed by
Liberty Mutual four times over a 10-year period, Jeffords was judged to
be suffering a total disability. She now receives $280 per week in
wage-replacement benefits, but she feels that her case will never be
resolved because her medical treatment will always be fought by Liberty
Mutual. "I'm supposed to get medical benefits, but they're still
contesting them," she said. "I expect this to be a lifelong situation.
Every bill is a fight and I expect it to be like that until I either die
or get better."
Published reports reveal that Liberty Mutual
found IME Inc.'s explanation "unacceptable," and dropped the company in
An investigation by the Frauds Bureau is
A recent federal appeals court ruling,
Barnett v. Sullivan, confirms that there are significant
constitutional issues regarding due process in Pennsylvania's workers'
compensation system that have implications for almost every state in the
country including New York. The due-process issues arise out of the way
in which IME reports are utilized by insurance carriers.
The ruling held that a provision of the
Pennsylvania workers' compensation law violated the due-process rights
of injured workers. The court held that private insurance companies
violated the constitutional due-process rights of claimants when, acting
as "an arm of the state, " they participated in cutting workers'
compensation benefits without a hearing. The court reasoned that
carriers were acting as state agents because they were providing public
benefits which honored state entitlements.
If insurance carriers in New York are
similarly found to be "an arm of the state," then provisions of the
state's Workers' Compensation Law permitting unilateral denial of
medical treatment and/or wage-replacement without prior warning and
before a hearing may also be vulnerable to claims that they are
unconstitutional. In New York State, IME reports become the basis for
decisions made by the insurance carrier about cases in which there is a
continuing award. These decisions may be unilaterally implemented
without prior notice being given to claimants, and appear -- in light of
the Pennsylvania ruling -- to be unconstitutional.
Workers interviewed for this report
recounted a startling lack of due process rights in relation to IMEs.
Workers reported that often one-sided reports generated by IME doctors
became the basis for decisions by the insurance carrier. These decisions
unilaterally deny, cut off, diminish or delay wage-replacement benefits
and medical treatment -- without consultation or prior notice. Although
the rulings can be appealed, some workers were intimidated by the
prospect and accepted decisions that were clearly inconsistent with the
findings of their own treating doctor.
The stories of four victims of workplace
injuries or illnesses are detailed in the following section. These
workers all underwent at least one independent medical examination, and
each had an unfortunate, sometimes unsettling experience. The names and
particulars have been changed.
When I first walked in, he seemed to have
some sort of attitude. I told him I was in pain, and he waved his
hand, like So what?
He didn't want to hear about my neck. He
said if I had the tendon in my wrist operated on that would take care
of the pain in my neck. Then he examined me. He told me to put my head
up and down. I told him I couldn't, so he pushed my head for me. He
did the same thing with my wrist and arms. I kept saying I was in
pain, and he kept waving it away. He wrote down the angles of where he
was pushing me on the chart, not what I was able to do on my
He said, "what would you like?" I said I
wanted to get healthy. I wanted to get back to where I was before this
happened -- to grocery shopping, clean up my apartment, and blow- dry
my hair. He said, "You may never be able to do the things you did
before, but that's life. "
Then he told a story about this kid he
knew who was going to school, graduated with honors, and began looking
for a job. [The kid] interviewed with a company and got a good
position. He made a big point that the kid got everything because he
knew someone who could help him get ahead, "Just like you."
I really got the feeling that it was a
case of, you do something for me and I'll help you out. I was very,
very uncomfortable. It sounded like the doctor was expecting
something. It's not that he did anything overt, but to this day, I
know he was after something.
People go to doctors, trusting them for
help. You go there expecting them to take care of you. You don't
expect any advances or anything unethical or
unprofessional. [From The
Repetitive Strain Injury Recovery Book, Chapter 2, Pages 18-19, by
Deborah Quilter, Walker and Company, New York, 1998. Used with the
I asked [the doctor] if he'd read that I'd
had corticosteroid injections that very day, information that was on
the prescription and attending doctor's report I'd given him when I
walked in the door. No, evidently he had not. He said that was not
good, it would hamper his examination. I should have told him to stop
right there ...It didn't hinder him, though, as he pulled this, pushed
that, had me grip or move my anus, pulled my neck up. Five minutes
later he looked me straight in the eye and said "You don't have carpal
tunnel syndrome." He never asked me about work. He wasn't interested.
He wouldn't listen to me when I told him I'd had an EMG, a scientific
test which proved carpal tunnel syndrome.
Ellen is a graphic artist for television
network news. In 1996 she was diagnosed with several severe ailments
associated with repetitive motion: persistent trapezoid myositis;
lateral epicondylitis; and wrist tendinitis. Her case was established
promptly, but did not preclude her from trouble. It began when her
employer's insurance carrier refused to pay for her physical
I called the Insurance company to see why
they weren't paying, and they said "What? You need to use one of our
doctors." Before long I got a notice from one of these (IME) brokers.
The note said that my appointment was that day and that I would have
less then an hour to get there. I called for directions, and they said
my appointment was canceled because the doctor had to go to surgery.
So I called the broker back and they were very apologetic and they
So I got rescheduled for a month later,
and called to make sure. The doctor was hard of hearing, so I had to
repeat myself a lot. I just don't understand how he could perform
surgery .He would ask me questions, but before I would answer, he
would ask me the next question. I told him that every day I go to
work, I hurt more. He said "Why do you torture yourself that way?" He
looked at my records and said: "They don't have a real diagnosis
here." Then he manipulated my arms, and told me that I definitely had
full range of motion and that there was nothing wrong with me. He said
maybe it would be cheaper if the company changed my work station --
and I agreed. Later when I mentioned ergonomics, he said "Ergo what?"
feigning not knowing what ergonomics is.
I called the brokers afterwards and asked
why they sent me to this guy. just one of the doctors to whom we send
And I was told he's just one of the
doctors to whom we send people.
Tammy is a 42-year-old video tape editor.
Her doctor has diagnosed her as having tendinitis, ulnar neuropathy
(her entire ulnar nerve disabled), neck pain, and upper arm pain.
Here, she describes her IME exam:
The [IME] doctor held my wrist and forearm
in his hands. I stood up and he swung my arm back in a cavalier way,
he was very rough with me, pushing me and making me wince. Then he
looked at my x-rays, and said, "Oh you don't have the thing you say
you have." I found out later that what I had couldn't show up on an
x-ray. I heard the woman before me being badgered, she was a uniformed
worker, perhaps with the [New York City Transit Authority]. "You 're
not really sick!" the doctor yelled. He was loud and obnoxious. I
walked in and he was speaking into a Dictaphone and looked up at me,
and said, "Bring that chair over there with you." And I turned to get
the chair and stopped and realized it was a test. I couldn't lift it
anyway, so I dragged and kicked the chair with my leg. During the exam
[ which lasted eight or nine minutes] the doctor would ask me a
question and interrupt, and then tell me to say it again into the
Dictaphone -- it seemed deliberately confusing.
Even though I already had my case
established, he said he didn't see anything
Recommendations & Conclusions
As debates continue about the affect of the
workers' compensation system in New York State on business, certain
aspects of the system, including the mandatory Independent Medical
Examination, appear to be particularly harmful for injured and sick
workers. This report shows that the IME system is virtually unregulated
and that it is having a damaging affect on the ability of claimants to
receive fair and equitable treatment.
The following recommendations, if
implemented, would go a long way toward improving what appears to be a
system severely slanted in favor of insurance carriers:
1. Re-establish a Workers' Compensation
For more than 70 years New York State
employed a panel of doctors who were available, upon referral by a
Workers' Compensation Board judge, to assess medical evidence in
disputed cases. The doctors were fired in 1996.
The system worked in New York, and similar
independent medical review processes have worked well in other states,
such as Massachusetts and Maine.
[State of Maine Statute --Title 39A, Section 312. Independent Medical
In Massachusetts, for example, the system
works much the same way it did in New York State prior to 1996.
Medical reports provided by the workers' doctor and the insurance
company doctor are discarded, and instead, the state's Industrial
Accident Board judge bases his decision on the diagnosis of a
state-hired physician. The doctors who examine claimants for the
Massachusetts Industrial Accident Board are under far stricter
restrictions than those who conduct examinations for insurance
companies. Massachusetts requires that its doctors, on completing
their examinations, personally fill out the medical reports, including
detailed statements on the diagnosis and the ability of injured
workers to return to work. They then must sign the report themselves
and retain their notes. ["Injured
Workers Find Systematic Obstacles," by Stephan Kurkjian and Gary S.
Chafetz, Boston Globe, December 18, 1995.]
Any panel established in New York should
also be required to undergo training on occupational safety and health
to better be able to assess the relationship of a patient's impairment
to their ability to return to work.
2. Amend the Workers' Compensation Law to
reflect the following concerns:
A. Call IMEs "Insurance Carrier Exams"
As this paper has shown,
IMEs are conducted by and for insurance carriers and in no way function
as independent evaluations. They are often extremely partisan but are
given equal or greater weight than the comprehensive evaluation
conducted by a worker's treating physician.
The law should be
amended to reflect the true nature of these so-called exams.
- Claimants should be given adequate notice
of their examination date.
- Facilities must be appropriate diagnostic
settings, either hospitals or doctors' offices.
- Exams should be scheduled during regular
business hours unless otherwise arranged with the claimant.
- Exams should be held in locations that
are not unreasonably far from the claimant's home address.
- All travel should be reimbursed.
C. Due Process
In accordance with due process requirements
set forth in the recent Bamett v. Sullivan court decision,
claimants should be entitled to:
- Disclosure of
Information. Each claimant shall
be supplied with a written copy of the final IME report at same time
it is sent to the insurance company;
- Response Procedure. Each claimant shall have the right to respond to
the IME report -- either themselves or through counsel -- before a
decision is made regarding their degree of disability, their
wage-replacement benefits or payment of their medical expenses. The
insurance carrier should not be allowed to unilaterally base decisions
on IME reports without claimants being given a chance to respond,
without consultation or without prior notice. A hearing should be
scheduled within a brief but reasonable period of time to air any
response claimants may have.
- Witnesses. When attending IMEs, claimants should be allowed to be
accompanied by a witness of their choosing and should be free to audio
or video-tape the examination.
D. Licensing and
- Physicians hired to conduct Independent
Medical Examinations must be licensed in the State of New York and
certified by the New York State Workers' Compensation Board. They
should also undergo a reasonably brief training regarding general
principles of occupational safety and health medicine.
- To avoid potential conflict of interest,
IME doctors should be precluded from working for Preferred Provider
Organizations or Managed Care medical practices that are also
providing primary care to injured and sick workers.
- Doctors who engage in the altering of IME
reports should be subject to penalties and disciplinary action in
accordance with state medical practices.
E. Develop, and make available to all
claimants, an IME Patient's Bill of Rights
The Bill of Rights would make all claimants, upon
receiving notice of an IME, aware of basic rights as enumerated
Unjust Treatment: "Independent" Medical
Examinations and Workers' Compensation in New York State was prepared by the the New York State AFL-CIO, 100
South Swan Street Albany, NY 12210; Edward Cleary, President;
518-436-8516; and the New York Committee for Occupational Safety and
Health (NYCOSH), 275 Seventh Avenue, 8th Floor New York, NY 10001; Joel
Shufro, Executive Director; 212-627-3900
NYCOSH is a nonprofit advocacy organization
that conducts education and research about workplace safety and
The New York State AFL-CIO represents 2.5
million union members in the state of New York.
Funding for this report was provided by
Civil Justice Foundation of Washington. D.C.
Copyright 1998 New York State AFL-CIO
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