A Good IME Should Include Good Investigation
Friday, October 2, 2009 | 0
By Eugene F. Keefe
Synopsis: Beware the "Garbage-in, Garbage-out" independent medical exam
Editor's comment: As insurance carriers and third-party administrators (TPAs) struggle to control costs for their accounts, they are pushing the responsibility to set and handle independent medical exams (IME) to their adjusters. We also note busy adjusters are doing less and less accident investigation. In major claims with six-figure exposure, it is almost negligent not to get:
- Web-cam interviews or, at a minimum, handwritten statements from claimants;
- Web-cam interviews or handwritten statements from witnesses and supervisors;
- Security camera videotape or DVDs where available;
- Documentation of any nature that confirms or contradicts the claim of accidental injury; and
- Matching medical histories.
We feel there is a natural reluctance in the industry to use defense counsels at most stages of working cases up for hearing. We consider that penny-wise and pound-foolish when you see lots of issues come out of the initial analysis and evidence. When you see question after question arise, we feel solid risk managers at least seek a thumb-nail view from your defense team about the weight and trial value of your defense case-in-chief.
When you start to cross from the initial accident investigation to medical-legal issues, it is again important to seek out advice and counsel of solid veteran defense attorneys. Always remember such claims and the dollars to be spent may completely pivot on the IME outcome.
In major claims, we recommend claims and risk managers consider having your IME's guided by veteran Illinois defense lawyers. If you have pending claims with medical-legal issues, we are happy to provide expert guidance to your Illinois claims adjusters to insure you receive authentic and scientifically based outcomes. We do not charge for preliminary advice relating to investigation, setting up defenses and IMEs unless and until we are assigned the file.
What is a "Garbage-in, Garbage-out" IME?
Physicians and surgeons are highly educated professionals. The very best of their profession keep close track of every scientific development and share it with our society. But as scientists, they have limitations. If you ask their professional opinion, they have to rely on the background information provided and can't speculate. Like a computer, if you put garbage in, you will get garbage back.
We have recently reviewed a number of defense files sent to us with IME opinions finding the conditions were uniformly related to work. In these claims, despite the absence of trauma or precipitating event, we feel an initial assumption was made by the busy adjuster to accept this condition as work related. Once that preliminary assumption was made, the claim was routinely handled so as to make it compensable. A more thorough investigation internally and communication between defense counsel and the claims adjuster may have allowed for the proper denial of ambiguous or questionable claims.
We reviewed a shoulder claim where the IME physician clearly and definitively related the shoulder problem to work. Surgery was felt related. Such a claim has exposure in Illinois from the high five-figures to the low six-figures, assuming there are no permanent restrictions. With permanent restrictions, claim value can reach seven-figures.
The main problem in this claim was how the "defense" (or lack of any defense) to the shoulder claim was established. The independent medical examiner was sent this claimant and advised the patient had shoulder pain "at work." The examiner was not specifically asked if the pain occurring "at work" was related to or "from" work. As the adjuster didn't ask the question, the examiner basically didn't answer it. If you could review the report, we assert the IME was a self-fulfilling prophecy — if you send any Illinois employee to a doctor telling them the patient has "pain at work," all of the doctors will reply to confirm the pain is related to work. They are even more likely to do so if you then promise to pay the IME doc for surgeries they recommend and later perform.
In the claim in question, we had no idea if the work claimant performed for the employer was "shoulder-intensive" and whether other similarly situated workers commonly reported similar shoulder pain and problems from doing similar tasks. We point out, the vast majority of the time, shoulder pain and problems do not arise from floor-to-waist lifts. Therefore, if the majority of claimant's job tasks involved minimal lifting or only floor-to-shoulder lifts, many defense IME surgeons may not have related such work to his shoulder problems.
In contrast, waist-to-overhead lifting may commonly produce shoulder pain and problems. If claimant routinely lifted significant weight from waist to overhead, the IME physician would probably have related the condition to work. If the worker didn't perform such lifts, we are fairly confident the IME physician would have not felt the problem was causally connected to work. From our review of the file, we have no idea if the work performed by claimant fit into either category.
In the accident investigation, no effort was made to determine whether claimant had any activities of any kind outside of work that might cause shoulder problems. The employee and his supervisors should have been made to give statements to determine if we could learn anything that might have been helpful. We did not see videotaped or hear audiotape statements in the file.
We also noted the IME examiner was not asked to make such inquiries about outside activities. When we set IME's, we always want the IME doctor to inquire about pertinent activities, in this case related to the shoulder that a claimant participates in outside of work. Sometimes claimants lie to IME doctors but sometimes claimants will tell the truth — either way, it is worth simply and innocently asking.
Based on the information the IME doc was provided, he recorded shoulder pain and recommended surgery to relieve it. Thereafter, it will be virtually impossible to refute the determination by the defense IME doctor that surgery was reasonable and/or necessary. At the Illinois Commission, IME doctors are implicitly viewed as "agent's of Respondent" when the employer or carrier/TPA selects them and later certifies care recommended by them.
If you are going to spend thousands on an IME, do the homework for the examiner to give them what they need to opine fairly
In defending similar claims in the future, we would not have not have approached the IME in that fashion. To dispute such a claim, it would be critically important to find a physician who specializes in evaluation of shoulder claims. We are happy to make similar recommendations — send us an e-mail about the body part and type of IME evaluator needed. We don't charge for the recommendation.
As part of the preparation for an IME, we would provide OSHA job descriptions or job videotapes so the IME physician can actually see what specific job tasks might or might not produce shoulder dysfunction. Without such evidence to support his/her opinions, any determination on causal connection would be speculation. But remember, bad speculation doesn't help the defense side in this liberal state.
From the perspective of the medical examiners who read this article, we suggest you avoid the "Garbage-in, Garbage-out" exam because you may come under scrutiny when the adjuster isn't happy with your opinion that is based on limited information. Be sure to warn the adjuster or person who sends the examinee to your office that you need evidence sufficient to scientifically confirm or reject causal connection. We appreciate your thoughts and comments.
Synopsis: Illinois 2010 workers' compensation medical fees will go down 1.48%
Editor's comment: The Illinois Workers' Compensation Commission announced these new savings for Illinois employers under the WC Act. Section 8.2(a) of the Illinois Workers' Compensation Act provides that, each year, fee schedule rates shall increase or decrease by the percentage change in the Consumer Price Index-Urban in the previous year. Because the CPI-U decreased 1.48% between August 2008 and August 2009, Illinois rates will decrease 1.48% for treatment on or after Jan. 1, 2010.
The commission will hold seminars around the state to explain the fee schedule to payers and providers of workers' compensation medical treatment. Sessions directed toward attorneys will be handled separately at a later date. They have just added an online seminar on Nov. 5th for people who can't make it in person. It will be a live event scheduled in the same manner (10 a.m. and 1 p.m.) as the other programs.
For more detail, view the commission's flier at http://www.iwcc.il.gov/seminars.pdf
To register for a seminar, go to http://truecoursemdcs.com/new/events/
Synopsis: Mark your calendar and be sure to attend SafeWorks Illinois' 17th Annual Work Injury Conference.
Editor's comment: Titled Work Injury in a Down Economy: Exploring Recession Ramifications on the Workers' Compensation System. For 17 years, the Work Injury Prevention & Control Strategies Conference has been on the cutting-edge of Illinois workers' compensation issues.
We invite our readers to join the brightest minds in the industry who lead innovation in treating injured workers and improving the workers' compensation system. Be a part of the solution in an interactive discussion of two simulated workers' compensation cases. Examine the reality of two cases and how it affects each stakeholder in the workers' compensation system. Gain insight on how these trends will affect you and future cases.
The conference is set on Oct. 29, 2009 at the i-Hotel in Champaign, IL, from 8:00 a.m. - 5:00 p.m. Registration is $120; the Preregistration deadline is Oct. 15, 2009. For information, call 217-356-6150.
You can register online at http://www.safeworksillinois.com/work-injury-conference-registration-2009.html.
<b>Synopsis</b>: Not just another boring webinar — 2009 Workers' Compensation Law Update for Risk, Health, Safety, HR and Benefits Managers
Editor's comment: Learn the nuances of claims and accident investigation for your workers' compensation defense program. We will cover updated legislation and case law relating to exposures, accidents, benefits and all issues in the ever-changing world of workers' compensation in Illinois and other states.
There are new techniques you may consider in hiring, ongoing monitoring of your workforce, return-to-work evaluations and accident investigation that only the top managers are using. Participants can bring their programs up to state-of-the-art in tackling a tough facet of business. The program will be taught by Gene Keefe of Keefe, Campbell & Associates who leads an 11 lawyer defense firm and is an adjunct professor of workers' compensation law and practice.
Speaker: Gene Keefe
Date: Tuesday, Nov. 17, 2009
Cost: $79
For more information or to register, contact Liz Kerns at the Illinois State Chamber of Commerce at lkerns@ilchamber.org
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Eugene F. Keefe is a partner in the Chicago law firm of Keefe, Campbell & Associates. This item from the firm's blog, www.keefe-law.com/blog, was reprinted by permission.
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