Tips to defend an IME opinion or report


This article is dedicated to injured worker “Kevin”, who has (had) the courage to confront a(n alleged) grossly biased IME in court. Never forget that the IME (for example an orthopedic surgeon) who has been hired by your workcover insurer to do an “independent” medical examination of you is not your friend. Most are only hired to do a specific job and that is to minimise the damage aspects of your workcover case. Some IMEs are pretty honest and their assessments, reports and even Court testimony is straightforward. BUT there are some IME doctors who have absolutely no moral. They will say whatever they need to in order to advance their client’s (the workcover insurer) cause and goal.

Tips to defend an IME opinion, or report and/or testimony

Most IME doctors are smart enough to know that they are hired by the defendant (namely the workcover insurer and/or workcover authority) to minimise damages – whether payment of weekly pay, medical and like services, denying a claim or minimising legit compensation. It is well-known that these IMEs will answer every open-ended question in a way that helps the insurer’s cause and goal. Do not expect these for-hire ‘experts’ to give a fair or honest answer.

Some tips to control the IME’s damage

Ambush the IME

A defense or even a cross-examination of a biased IME should be a real ambush and should be done very quickly so that the IME has less time to defend the workcover insurer’s position.

Outline on one piece of paper the following points:

  • Write down the points of agreement with the biased IME’s report, opinion or testimony
  • Write down any positive aspects of written IME report
  • Write down all the inconsistencies between the IMEs report /opinion /testimony and – if available also compare the handwritten notes of the IME (obtain under FOI)
  • Highlight the limited nature of the IME exam (e.g expert in the field of your particular injury?)
  • List any medical records, including imaging (CT, MRI, Xrays etc) that were not reviewed or examined by the IME doctor
  • Highlight the IME’s ongoing relationship with the ‘defendant’ (workcover insurer)
  • Highlight the financial side (rewards) of doing independent medical examinations (also see comment here)
  • Find inconsistencies with prior assessments, reports (if applicable)

Let’s elaborate a little…

tipPoints of Agreement with the biased IME’s report, opinion or testimony

No matter how biased the [defense /workcover] IME is, you will always find things in his/her report that you can agree on. For example this can be things like your name, your claim number, and even the cause of your injury. For example if you were unfortunate to be involved in some collision, potential areas of agreement may be the cause of the collision, the severity of the impact and that you were wearing your seat-belt /harness.

Begin your kind-of (or real) cross-examination of the IME with 5 to 10 leading questions, specifically formulated to have the IME admit that s/he agrees. This is arguably a good way to start off and give the overall impression/consensus that there really is not much of a debate about your injury.

Many great barristers will concentrate on all the positive things they’re able to get a biased IME doctor to admit to. In doing so, it has been said that the barrister(s) remove any credibility issue(s) since they actually use the testimony/opinion of their opponent’s ‘expert witness” (/IME).


Positive aspects of written IME report

Before anything, please meticulously “dissect” the biased IME’s written report. No matter how biased it is, you will almost always find some things in the IME’s report that can help you.

Focus on the IME’s physical examination. Read it very carefully, translate any medical jargon, and almost always there will be some “positive” finding on the part of the IME. It may however be deeply ‘buried’. Now, highlight these “positive” findings to the IME.  If the (biased/defense) IME is – at least- intellectually honest, s/he may admit to  permanent areas of your injury. Again, highlight those. In almost every IME report, an IME doctor will (have to) limit his/her testimony /opinion to his own “expertise in the field” of your injury. [1] That sets up a perfect opportunity, if for example you suffer from a back injury and were sent to an orthopedic surgeon or general surgeon, to highlight that the IME can not have an ‘expert’ opinion regarding, for example, any permanent neurological damage, psychological damage or other types of medical injuries!

[1]Note: IMEs should not accept referrals, or undertake an examination, if they are not qualified and experienced in the specialty for which the examination has been arrangedsee and USE the IME standards of service


Inconsistencies between the IMEs report

Unfortunately it is very difficult to obtain (legal permission) to video your IME examination in Australia (unlike in some parts of the USA, where the courts have actually ruled that an injured worker is allowed to have a court reporter and a videographer at any compulsory ‘independent” medical examination.)

A video of the IME examination can be in your advantage, for example the IME may play “Dr Nice” during the examination but be a real monster in a court – showing such a tape could show a court immediately what a schemer the IME is. BUT the same applies if you have taken a support person with you – they can be your witness to the examination and give testimony!

Another benefit of videotape and/or a support person (witness) is that IME doctors will always base their opinions of “no/little injury” on their physical examination. For example, the IME doctor might say in his/her report, “The worker had no problem in bending forward.” But by reviewing the video or recalling what transpired during the examination via your “witness”, a court will be able to see why the injured worker “was having no problem bending forward”: the IME doctor was doing all the bending for the injured worker! For example, the IME doctor may have had his/her hand on the injured worker’s back, a hand on the injured worker’s front, and the IME was in fact moving the injured worker very little. Same applies to -all to frequent- physical examinations of injured backs without taking off the injured worker’s shirt, and then make comments about ‘muscles spasms’, or even ‘scars’ without ever having actually seen the injured worker’s skin!

The importance of a support person (witness) to our IME examination cannot be underestimated! For example your witness can also record the time the exam started and finished. The IME may claim s/he saw you for 30 minutes, but thanks to your witness (and notes) you can, for example, show that the examination started at 2:00 p.m. and ended at 2:11 p.m. This may have devastating effects on the IME doctor’s credibility indeed!

It is also a good idea to schedule an appointment with your GP or specialist on the same day you are sent to an IME, just so your symptoms can be accurately recorded!


Limited nature of the IME exam

This is the part of your (or your lawyer/barrister) “cross-examination” of the IME where you highlight that this IME doctor has only seen you once. The IME examination may also have taken took only 11 minutes. The IME had never seen you before nor does s/he ever expect to see you again. This is, arguably, a very good time to have the IME doctor admit that s/he was – in fact- not hired actually to give any advice/opinion that would help you. Instead the IME was hired by the workcover insurance company simply to examine you. Understand what we’re saying?

Good barristers will also often ask the defendant’s IME if s/he actually has any advice that will help their client (YOU, the injured worker) feel better. Around 7 in 10 IMEs will say “nope”. This, arguably, allows a barrister to make a great argument (often in closing) that the IME doctor was not hired to help their client (you, the injured worker) in any way. The IME was hired exclusively to be a (bad) “mouthpiece” for the workcover insurance company.

Conversely if the IME doctor has some advice on either medical/surgical treatment or even pain medication/ management that may be of help to the injured worker, good barristers will use this information for their future damage argument (if applicable). For example “Even the insurance company’s own, hand-picked doctor told you that s/he feels that my client (the injured worker) would benefit from taking (heavy-duty) pain medication (or whatever) for the rest of his/her life.”


Medical records not reviewed/viewed by the IME

Sometimes it actually helps your case if the insurance company (i.e your “busy” case manager)  forgets little (but very important) things, such as sending the IME  all the X-rays, CTs, MRIs and relevant medical records! So, obviously take advantage of this! Start by identifying and listing all the items (images, reports) the IME was sent. Inevitably, there will (almost) always be something you or your treating doctor has that the IME does not have or was not given by the case manager. During your “cross-examination” of the IME, emphasize the medical records and images the IME doctor did not have to review and use this argument as yet another reason why your treating doctor(s) / specialist(s) have a much clearer picture of what is really going on with you!

E.g ” But doctor X, how can you possibly formulate your opinion if you have not even seen/reviewed my (recent) medical images, surgical reports, expert opinion(s) etc?”


Highlight the IME’s ongoing relationship with the workcover insurer

This is a cross-examination technique of an IME that lawyers and barristers virtually all use.

There is no doubt, that workcover insurers (and their defense lawyers) have favourite IME doctors. One just has to look through our IME list, or sift through legal cases, to see which (few) IMEs are used over and over again.  It is not too difficult to show that a certain IME doctor has done 20+ examinations for any particular insurance company (and/or their defense lawyers).


Highlight the financial side (rewards) of doing IME examinations

By establishing the number of IME examinations the IME doctor does in a year, the average cost, the average cost of a report, and the average cost of appearance at trial, etc you can come up with a very large dollar number.

Use a large sheet of paper and write in the figures and multiply them. It can be quite dramatic, and we believe it  does show a court effectively that the IME doctor has an interest in giving the workcover insurer what they want to preserve his/her lucrative income stream!

Read more: WorkCover pays independent medical examiners generously to have some idea of dollar amount.


Inconsistencies with prior assessments, reports

Nothing is as damaging to an IME doctor on the stand (i.e.being cross-examined) with a sworn statement or previous legal case that shows the IME saying the exact opposite of what the same IME has just testified/admitted to in your own case. It is very time-consuming to go through these legal cases to look for that one “gem”. But when you find it, it is worth gold.

So: Do perform a search of the medical / health practitioner / the IME on the Australasian Legal Information Institute Database Here you can sift through much of their court records to see if they are biased against injured workers

Also perform a search of the medical / health practitioner ? IME on Google, Bing, Yahoo and Rate My Doctor / RateMDs and see what others have said about the practitioner/IME.

Good luck guys and hope this helps a little!

[Article by WCV and WCV3]

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2 Responses to “Tips to defend an IME opinion or report”

  1. One of the best and most useful article, thank you so much for sharing your knowledge and extremely well thought out tips! I feel much stronger now, thanks to you guys 🙂

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    • Hello , great read thank you , every injured worker should read as this is very good info, to many injured workers just put up with the crap that is dished up to us from workcover !!
      I am due back at vcat on the 8th of April to do submissions .

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