We do receive this question a lot from injured workers. Understandably, many injured workers believe that they will (likely) be sent to a hired gun who will try to scr*w them over in return for getting more referrals from the workcover insurance company.
Can I video-tape my independent medical examination?
As far as we can gather, there are no clear cut laws in Australia on the issue whether you are allowed to video-tape an independent medical examination doctor (IME) or not, other than that it’s usually at the discretion of the IME doctor.
We obviously have not heard or don’t know of any such IME doctor (hired gun) that wants to be video-taped. We can only guess that it must be out fear of being sued or being ridiculed by his/her peers in a Court of law.
To tape or not to tape
When the exam does take place, lawyers and injured workers alike quite often argue over whether it can be recorded and whether the injured worker can bring someone to the exam. Many states have general statutes that don’t speak to what is allowed at an independent medical examination.
Pros and cons to videotaping IME exams
However, we don’t believe that it is a good idea to video-tape your independent medical examination, even when the IME doctor is a known hack / hired gun. Why? Simple: The hackiest of IME hired guns can still write an intelligent sounding report (albeit full of ‘discrepancies’ and lies). Your injured attempts at showing what really happened during such a hired gun examination will usually do nothing more than make the IME very defensive and turn against you even more! In addition, we have been told that some Judges and Arbitrators may also frown upon this practice as well, especially where there are credibility issues raised on the part of the injured worker.
Conversely, a lawyer told us that even though an IME doctor might typically perform a cursory exam, if a camera is on, he or she can also often become more kind and friendly and spends more time with the injured worker – something that will resonate with judges/Arbitrators/juries
The lawyer also said that where an IME doctor had refused to be taped, he had introduced that fact at trial.
We therefore strongly believe it is less contentious to for example bring a support person with you in to the examination room. The support person can document what is said and done during the exam as well as non-verbal language (incl tests) and the timing of the exam. The injured worker and this support person can then prepare notes for comparison with the report submitted by the IME. The support person is available for consultation (as a witness) related to the IME doctor’s testimony if the case goes that far and may testify as well if indicated.
Some IME doctors might not allow it (generally psychiatrists will refuse it), but if you are really uncomfortable being alone in there, it may be worth having a conversation about with the IME, or well beforehand with your case manager.
Some (like us) strongly believe you should be allowed to at least bring a support person, but others won’t agree.
God knows, this whole issue may just need a good case where it goes all the way to the Appeals Court to really clarify what should and shouldn’t be allowed.
It happens all the time, for example, a few days ago, a bewildered injured worker contacted us and told us she suffers from severe pain radiating down both her legs from her back and can’t sleep from the pain… and yet some hack IME doctor who saw her for 12 minutes says she is 100% fine and fit as a fiddle to return to work as retail assistant (on her feet all day).
So it is fully understandable that injured workers want to record what really happened at the “independent” medical examination and/or, at the very least, bring a support person who can testify as to how superficial, short, and deceitful the examination really was.
As stated above the support person’s evidence (testimony, such as a stat dec) can be very helpful, especially to contest an IME’s opinion (i.e. in Court).
The pathetic truth unfortunately is that a lot of times these IME doctors base their reports or “opinions” on their review of your (selective) medical records and actually seeing and examining you does not have much to do with how they form an opinion. Usually they know the answer long before you walk into the exam room!
The fact is that many IME’s are simply money making machines on a gravy train-many of them earn an extra 5 figures from doing these examinations.
However, do not panic if you have been sent to a hired gun because:
- A credible treating doctor / specialist will way more often than not sway a Judge/ Arbitrator
- Workcover insurance companies, lawyers and Judges/Arbitrators all know who the real hired guns are.
So while (some of) your benefits may be cut off or delayed, ultimately you will almost always win in court (or disputes) if you have a good, credible doctor and a decent lawyer on your side.
Instead of video taping the IME, we believe it may also be worth considering taping “a day in the life” of the injured worker instead, which will -generally-give the (court/judge etc) a more concise and succinct picture of the injury’s impact on the injured worker.
As far as what to do at an IME and how to protect yourself, there are heaps of articles which address this; they can be found under the tag “IME”
[Post by WCV and WCV3]