IWA Testimony 1/6/05: IME Physician Bias Toward Insurers

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IWA Testimony 1/6/05: IME Physician Bias Toward Insurers

Postby Webmaster » February 25th, 2005, 7:20 pm

Testimony from Injured Workers’ Alliance to MLAC
Supporting documents were provided although not included here.

January 6, 2004

Management-Labor Advisory Committee
Labor and Industries Building
350 Winter Street NE
Salem, Oregon 97310

RE: Professional/Ethical Standards for IME Physicians

Management-Labor Advisory Committee Members:

Oregon Workers’ Compensation Laws and Administrative Rules do not govern the conduct of IMEs. OAR 436-010-0270 (10) simply states, “The person conducting the examination shall determine the conditions under which the examination will be conducted.”

Yet the examiner wields tremendous power since an injury claim can be closed due to noncooperation. Because video and audio recordings are disallowed unless the examiner approves, there is no objective mechanism to determine what actually took place in such situations. Even with witnesses, a he-said she-said situation exists.

I testified regarding Robinson v. Nabisco, Inc. 1 (2000) on December 15, 2004. In that instance and others cited 2 below, Oregon Appellate Courts found that the evasive actions of IME practitioners created compensable injuries. The Robinson ruling came 8 years and three months after the IME.

It’s quite apparent that not having meaningful professional/ethical standards for IME physicians increases litigation, drives up insurance rates, and creates misery for injured workers.

The well-known record of the Oregon Board of Medical Examiners makes it an inappropriate body in regard to workers’ compensation. This in large part is due to the fact that there’s no physician/patient relationship. In testimony to you on December 9, 2004, WCD Director John Shilts discussed the problems associated with BME involvement and oversight.

In the past, we’ve provided MLAC with documents from the BME that discussed a perceived insensitivity or lack of compassion, along with rudeness to those under evaluation. Another BME letter discussed failures to provide adequate draping which led to allegations of sexual boundary violations. The BME never investigated any of these issues and a case could be made that they buried them. The BME blocked attempts by injured worker advocates to investigate what they wouldn’t.

Like in Oregon, the New York Workers’ Compensation System was once lacking in the area of professional/ethical standards for IME physicians. This changed after situations and evidence came to light 3 that were widely publicized. Governor Pataki signed the New York IME Fraud Bill 4 on September 20, 2000 and it went into effect on March 20, 2001. Along with several legislators, State Bill A08601 was introduced at the request of New York’s State Insurance Fund. It had the backing of state business groups. Major provisions of the law, along with rules adopted since are:

1. It is a prosecutable fraudulent practice when a supervising authority or insurer directs or encourages a report that differs from the opinion of the examiner.
2. An IME report cannot be the basis for eliminating or reducing any benefit unless and until the injured worker has had an opportunity for a full hearing;
3. The ability of a claimant to appear for an exam or hearing is not admissible evidence in the determination of disability, extent of disability, or eligibility for benefits;
4. Workers may request and receive, free of charge, the same number of IME’s as the insurer and the employer;
5. Workers can videotape or otherwise record examinations;
6. A witness or witnesses of the worker’s choosing are allowed to attend IME’s;
7. Workers automatically receive a copy of each IME report;
8. Examiners and IME brokers are required to register with the state through a detailed form. A $250 registration fee is required;
9. They must meet eligibility requirements and be authorized 5 before doing IME’s. Requirements include a current, valid and unrestricted professional license issued by New York State, along with board certification;
10. Registrants must provide details of business relationship between all parties;
11. Authorization is revoked for IME providers when they violate laws or IME regulations;
12. Practitioners or providers of IME's are prohibited from participating in any panel providing preferred provider or managed care provider treatment;
13. All IME’s must be performed by a practitioner whose medical specialty is in the field of injury or disease from which the injured worker suffers;
14. IME physicians must affirm their reports under penalty of perjury 6. Perjury is a felony and punishable by up to five years imprisonment;
15. IME fees are determined by the New York State WC Board fee schedule. This has reduced fees as much as 90% we’re told.

Accountability and rigid, enforceable standards must be enacted in regard to IME practitioners. A good starting point is OAR 436-010-0340 which governs medical arbiters. If WCD is not allowed to act as a neutral third-party facilitator in choosing the examiners, higher professional/ethical standards for IME physicians are required. The protections enacted through the New York IME Fraud Bill would be a good choice. IME practitioners must not be accorded “special rights” compared to treating doctors who heal the injured.

Injured Workers' Alliance

1 Exhibit K. Robinson v. Nabisco, Inc., 331 Or 178, 185, 11 P3d 1286 (2000)
2 McAleny v. SAIF, 191 Or App 105 (2003); Getz v. Wonder Bur, 183 Or App 494 rev den, 335 Or 104 (2002)
3 Some of the abuses are detailed at http://www.nycosh.org/workers_comp/IME_ ... chor288853
4 New York State Bill A08601 - http://www.nycosh.org/workerscomp_omnib ... #bill_text
5 Screening done by county medical society, state medical society, panel, board or practice committee. Approval required.
6 The deliberate, willful giving of false, misleading, or incomplete testimony under oath. The breach of an oath or promise.
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