Fact, quite a few independent medical examiners (IMEs) often attempt to minimise the injured worker’s condition and allege the injured worker is “exaggerating” his/her pain. Some claim or imply that the only thing that will cure you is money. It’s happened to me, it’s happened to countless other injured workers. I have amused myself compiling a list of questions we should ask those ignorant IMEs. For example: “Dear IME, if money cures the condition and takes away the pain, then does that mean that you regularly prescribe “money” to your own patients suffering from these same conditions? Enjoy!
The IMEs do this in different ways, such as writing in the IME report (or testifying in Court for that matter) that the injured worker’s pain is ‘excessive’ for his/her condition, even though they usually never give or use any actual pain scale. Other IMEs will use/abuse the so-called Waddell’s signs to claim the injured worker is malingering or faking their pain. Some IMEs state that while the injured worker’s injury may cause some pain, they should not feel this much of pain or type of pain. And yet other IMEs will simply claim that your pain should have resolved by now, or -worse-, that money will cure you!
Is your IME claiming that you exaggerate your pain?
Now what on earth can you do about such false statements about your pain?
You may recall our previous article “Tips to defend an IME opinion or report” – and well, you can quite easily challenge a biased IME’s opinion about your pain by writing a letter (to the workcover insurer and IME) and stating the many reasons as why the IME’s opinion is flawed. That’s not to say the IME (or insurer) will ‘rectify’ or ‘correct’ their opinion, but at least you’ll have a record. In addition, if you need to dispute the pain-matter, your lawyer and barrister can use your ‘reasons’ (such as those set out below) to defend your position and to have the IME concede that you do in fact have pain.
Possibly the best way to make a case on the issue of your pain is to:
- Get the IME to agree that our underlying condition or injury CAN cause pain
- Get the IME to acknowledge that pain is subjective; in other words that people feel or perceive pain differently
- Then use the rationale/reason(s) the IME is relying on to allege you don’t have pain, or are exaggerating your pain.
General questions you could put to the (biased) IME could include the following:
Specific questions: Pain scales
Many IMEs will ‘assess’ your pain and opine about your pain, but they will do so without even using any tools such as pain scales! It is likely that your IME did not use any pain scale during his/her assessment.
If the IME did not give any actual pain scales to rate the level of your (perceived) pain, you could question the IME using the following questions.
Did you actually use a pain scale(s) to determine my (the injured worker’s) pain level? For example, did you use the Numeric Rating Scale? (1 to 10, with 10 being the worst imaginable pain). Did you use any other pain scale or pain tool? Did you use any pain scales at all?
Dear IME, did you ask my me (the injured worker) about pain medications I (s/he) had taken that day? [Note: Often, injured workers believe they are not supposed to take pain medications on the day of the IME examination. This can also change the ‘level of perceived pain’, and for example an injured worker whose pain is reasonably well controlled (let’s say 3/10) on Oxycontin and Lyrica would inevitably rate a 6 or 7 (or more) when off that medication, which could explain a ‘variance’.]
Specific questions: How much pain is this much pain?
Quite often IMEs will agree that an injured worker’s injury/condition may cause some pain, however they will state or opine that your injury/condition should or does not cause “this much” pain.
Well, to begin with you could refer to studies that have been undertaken that show that pain is subjective. For example a rigorous study was done on in which people were given the exact same painful stimulus, and (functional) MRIs of their brains revealed these people experienced the pain differently. Individuals feel/perceive/experience pain differently (and most doctors agree with this). How then can an IME claim that there is a defined /precise/quantifiable amount, defined frequency or defined intensity of pain that the injured worker (I) should feel. where is the supporting documentation and evidence? There isn’t any!
Dear IME, before you decided I (the injured worker) wasn’t really feeling “this much” of pain, or even this type of pain (i.e. neuropathic pain such as burning), did you actually undertake any research to assess/find out what kind and ‘how much’ of pain the injured worker’s injury/ condition causes, or can cause?
Conversely, dear IME, if on some days my (the injured worker) may be feeling less pain, then some days the same injured worker may well be feeling more pain, no? [Note: if the IME denies the possibility of having different pain levels on different days, s/he is really caught lying! If the IME states/alleges your painful injury/condition is such that you can only have periods of “less pain” and never more pain, it is so illogical that it beggars belief.]
Should the IME agree with the previous question, then you could ask him/her: So you agree that on some days my (the injured worker) pain may be less than a level 2. Is it possible then that on some days my pain level may be slightly more that a 2/10?
Let’s assume the IME agrees to the above statement. Ask him then what pain level (on a scale of 1 to 10) is the pain level beyond which I (the injured worker) should not be feeling pain? Is it a pain level of let’s say 4? A 5? Or a pain score of 8?
Let’s say the IME opines you (the injured worker) should not be experiencing pain beyond let’s say level 5. Ask him/her to show you any scientific and peer-reviewed research to back up his/her (pathetic) statement? [Note: if the questioning occurs in a Court of law, then your barrister may actually tell the IME (or “defense expert witness”)”You can use my laptop or iPad. It’s connected to the internet and you can search through pubmed or whatever research websites you use for research. There won’t be any such research!]
[You may even go as far as telling the IME that you have actually done some research and found several articles in peer-reviewed medical journals authored by well-respected medical doctors like him/her and show /share these articles. Ask him/her if these articles (you researched) indicate that described symptoms of a particular condition such as “burning” and “tingling” are in fact expected with the type of injury/condition you (the injured worker) have. [But the IME denies you could possibly feeling a certain type of pain]
Again, dear IME can you find or show me an article that supports your position/opinion? State for example that When you typed in the words “herniated discs” you got 147 thousand hits. Ask the IME why s/he is unable to find at least one article to support your /the injured worker’s claim?
The IME alleges the injured worker should be pain-free (by now)
In this case, IMEs or “defense expert witnesses” agree that the injured worker’s injury/ condition actually exists, but claim that it (the pain) should have resolved by now.
Fact: Pain can continue after the painful stimulus is removed, or even after an obvious ‘injury’ has healed. This means even simple sprains or strains, or minor injuries from which patients should recover quickly sometimes do continue to cause pain— even forever. This can in essence be explained by an altered pain pathway, where a person with chronic pain, will continue to feel pain because the pain is somehow ‘remembered’ (a pain loop is created). Pain normally travels from the area which is stimulated with pain up pathways right up to the brain. When those (pain) pathways are continuously sending the message of pain to the brain, the brain can get stuck in a (pain) receiving mode. This is a little bit like not being able to get a particular song out of your head, and hear it over and over in your head, especially when you are not distracted. Nights are generally the worst time for individuals (incl. injured workers) who suffer from chronic pain, because at night (i.e. in bed) they are not distracted and can’t get the “song” out of their head.The same logic applies to the “chronic pain” including conditions labelled such as CRPS (Chronic Regional Pain Syndrome), formerly known as RSD (Reflex Sympathetic Dystrophy).
If an IME does not believe in “chronic pain” or conditions such as CRPS, you could always ask him/her if s/he has ever heard of the condition called “phantom pain”. This is a very real condition whereby people who have lost a limb (i.e. though traumatic or elective amputation) still perceive and feel pain in their missing limb. In fact, I had my ring finger partially amputated some 15 years ago, following a horse riding accident, and at times still feel that the side of my missing ring finger’s nail area is “itching” or “burning”. Go figure, but the condition is very real and quite prevalent (the WHO estimates that around 70% of those who suffered amputations experience phantom limb pain).
If the IME claims you (the injured worker) is malingering because the “cause for the pain” no longer exists (e.g., if you had a discectomy) then this ignorant IME completely ignores the anatomy of pain, particularly “remembered” pain as described above.
The myth that the only thing that will cure an injured worker is MONEY (settlement)
How many times have you heard a (biased) IME claim or imply that the only thing that will cure you (the injured worker) is money by means of a compensation settlement? Well, make the IME prove it! The following questions may be of help:
Can you tell me how money actually causes a herniated lumbar disc to become normal or “un-herniate”? Can you tell me how a destroyed shoulder (which needed a total reverse shoulder prosthesis) – or whatever condition – can become “whole” again with money?
Can you please tell me how money cures brain damage? I would really like you to walk me through the anatomy of how $ cash causes damaged brain cells to repair themselves; or how a destroyed shoulder joint regrows itself (like a lizard’s tail)?
Dear IME, If the (the injured worker) were your own private patient, and s/he had this injury/condition, and you were treating him/her, you would tell him/her that his/her pain would go away if he got money?
How to you apply the money to heal the person’s injury/condition/pain? Do you apply bank notes (of a certain denomination) directly onto the affected body part, like a poultice? Or does money need to be swallowed?
Dear IME, if money/settlement/cash cures the condition or injury and takes away the pain, then does that mean that you regularly prescribe “money” to your own patients suffering from these same conditions/injuries?
Why don’t you measure my (the injured worker’s) pain?
Most IMEs (even the biased ones) are likely to agree that each individual experiences or feels pain differently. However, IMEs, particularly those who are asked to be the ‘expert witness’ for the defense often try to turn the fact that pain is “subjective” against the injured worker by arguing that because pain is a subjective complaint, which is not verifiable, it is, therefore, a questionable complaint (insinuating you are exaggerating/faking etc).
This is erroneous because in fact pain is very verifiable! With, for example, special (functional) MRI scans, doctors can actually see the brain as it experiences pain and as such objectively verify pain (pain-related activations are clearly identified in the cortex and thalamus of the brain). You could always ask the IME to conduct these tests to prove you do feel pain! You can go as far as alleging that the IME did not want to ‘verify’ your pain because the IME started his/her examination disbelieving you (the injured worker); because the IME purposefully ignored your (pain) symptoms, and because the IME failed to properly diagnose your condition, or worse, deliberately ‘altered’ your diagnosis.
[Post dictated by WCV and manually transcribed on her behalf]
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