The workcover insurance company (who is defending your workcover claim) has a right to have a doctor (an independent medical examiner) of its own choice examine the injured worker. The logic of this general rule cannot be questioned. However the manner in which so-called “independent medical examinations” (IMEs) are carried out is often fraught with controversy, and it’s important that you know that you can refuse to see a certain IME in certain circumstances!
When an injured worker receives a letter requiring attendance at an “independent medical examination” (IME), it’s reasonable to assume that the doctor will in fact be independent and objective. Unfortunately, there is nothing independent about a workcover case manager choosing which doctor will second-guess another doctor’s opinion. For example, if a treating doctor reports that a herniated disc was caused by the work accident, and the workcover case manager doesn’t like that diagnosis, the workcover case manager might require that the injured worker attend an “independent medical exam” (IME) with a doctor the workcover case manager knows will instead diagnose just a lumbar strain, or worse a pre-existing or “degenerative” condition!
At aworkcovervictimdiary, via our IME List, we see the same IME doctors used again and again by some workcover case manager(s) because they can rely on the IME doctor to give the “right” answers to a letter the workcover case manager sends only to the IME doctor. Not all workcover case managers engage in this unfair practice, but enough do that it is a problem. The workcover case manager should at least be honest about what the exam is and call it a consultation ordered by the insurer.
Knowing that an IME doctor is not really independent, can an injured worker refuse to attend the exam?
In theory the answer is No, unfortunately, not. Workcover law allows a workcover case manager to schedule a consultation with an IME the case manager chooses, and if the injured worker won’t attend the appointment, his/her benefits can be suspended until s/he does attend. However:
- If the injured worker has previously been examined by the same IME and filed a formal complaint (and has requested not to be referred to the IME again) with workcover (i.e. WorkSafe Victoria), then the injured worker does NOT have to attend another assessment with the same IME! This is why it is so important to lodge a complain if you have been “badly” treated by an IME – Not only does it help purge out some of the most notorious IME’s, but you escape another potentially very damaging assessment!
“If a worker is concerned about the conduct of a s112 examination, they may make a complaint.
Complaints may include allegations of any of the following:
causing unnecessary pain in an examination
complaints of an examiner’s manner
inappropriate behaviour.” (See: Online Claims Manual http://www1.worksafe.vic.gov.au/vwa/claimsmanual/Content/7ClaimsManagementSegments/7%2011%203%203%20Complaints%20against.htm)
- If the injured worker is represented by a good and experienced workers’ compensation lawyer, there are various strategies to counter the hired gun. One is to file some sort of appeal (or a formal complaint) immediately upon receipt of a letter from the case manager scheduling with a known biased or rude IME doctor. Once filed by your lawyer, you can be pretty much certain that you will NOT have to attend the examination with that IME. In fact, the primary argument your lawyer will put forward (besides the fact that you had a bed experience previously) is that “all independent medical examiners” are “independent” and therefore there should – surely- not be a problem to be sent to another identically qualified IME (i.e. a shrink).
Case in point: A few years ago, I was asked by my obnoxious and rude workcover case manager to attend yet again an independent medical examination (IME), with the same doctor (a shrink) I had seen 6 months prior.My experience with this “independent doctor” was so traumatic that I refused to be examined again by the same doctor. There was no way on earth I would ever go to this independent doctor ever again. Just thinking about the experience cause me a major panic (and anger) attack! Being fearful of loosing my weekly earnings (read: being well aware that if you do not attend an IME your weekly payments/benefits may be suspended or ceased), I decided to consult my wonderful lawyer. Well, I am very pleased to let you know that we (my lawyer) were successful! I did not have to see that same, rotten (excuse my language) independent doctor but was given permission to attend the IME with another doctor (specialised in the same area). Oh boy, what a difference this made.
My lawyer basically wrote a letter to my case manager outlining my bad experience with this IME and arguing that I should be allowed to be examined by another IME shrink, given that all IMEs are INDEPENDENT. My case manager could not counter-argue this statement. So ask your lawyer to help you out.
- Also, if there is a “conflict of interest” on the part of the IME, you do NOT have to see that IME. A conflict of interest can mean a lot of things, including (but not limited) for example having treated you in the past, … or someone ‘close’ to you. Read between the lines as it would be unethical for me to spell out exactly how to word a (potential) conflict of interest. After all, your husband’s/wife’s nephew could have been treated or have been seen by this IME in the past. What about a coworker…? (They won’t check!)
- Lastly, you may have a reasonable (or compelling) reason not to see the IME in question: read or re-read the IME Declaration and Service Standards (VIC), and check carefully whether the IME meets all the outlined criteria. Criteria include for example, 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 arranged; IME (Applicants) must have at least five years of clinical experience in their area of speciality and be currently working at least eight hours of clinical practice each week and so forth.
Some doctors who perform independent medical examinations (IMEs) perform hundreds of these each year for the insurance industry, and make this service a large part of their practice. Their bias for the defense (insurer/employer) is notorious. It is not unusual for some of these physicians to charge between $500 – $1,000 for such examinations. If they give testimony in Court, the bill doubles or triples. How much can they earn in a week, month or year doing such examinations? You do the math. It can pay better than clinical medicine!
Such notorious IMEs often present an obstacle to a just resolution of the workcover controversy, because they predictably and regularly come to conclusions, write reports, and provide testimony quite slanted in favour of the defense and against the injured worker. This type of independent medical examiner is not “independent” in any sense of the word.
Examiners who fall into this category are well known to lawyers who are active in injury litigation. Their names are seen so frequently that “books” are kept on their usual propensities, typical reports, standard charges, annual earnings from forensic work, and even weaknesses on cross-examination. Aworkcovervictimsdiary also keeps a record of these frequently adversely reported IMEs.
The modus operandi of some of these IME doctors to defeat the claim is obvious – attack the credibility of the injured workert, making the injured sod out to be dishonest. The presupposition is that every workcover claim is a fraud and must be exposed. The task becomes one of discrediting the injured worker, rather than ascertaining the cause of the condition or the nature and extent of disability. These IME doctors have a penchant for writing reports that deny that there is any pathological condition whatsoever. If there is a true injury, they blame it on a pre-existing condition or a cause other than the trauma. If that doesn’t work, then they will simply minimise the extent of the injury.
There is only one way to go into an independent medical examination, no matter who is performing it. Thorough preparation and education of the injured is required.
If workcover sets up an IME for you, you can do some things to protect yourself during the exam—and afterward, if the report the doctor submits is inaccurate or harmful to your workcover claim.
- Ask your case manager for a COPY of their IME POLICY (i.e. in VIC the legislation states that they can send you to an IME at “reasonable intervals”. Generally speaking this is 1 or 2 x per year (unless your injury is very unstable) and if the case manager can not obtain the answers from your treating doctors!)
- Bring a friend. See if you can get a friend or family member to go with you. Explain to them ahead of time what the IME is about and what you would like them to do. Thy can take notes on exactly what time the doctor begins and ends the exam, what medical history or other questions the doctor asked you, what tests the doctor performed and how long they took, and other details that you might not remember. This person can act as a witness if you later have an argument about the fairness or accuracy of the examination. Having another person present also sometimes keeps the doctor from being rude or intimidating with you.
- Always counter a bad IME report. IMEs are conducted by doctors who regularly work for the insurance company. These doctors want to make the workcover insurance company happy so that they can continue getting these $$$ lucrative exams referred to them. That means their reports to the insurance company tend to minimise the extent of workcover victims’ injuries. If that happens to you, there are several things you can do and say during your negotiations with the workcover insurance to counter the bad report.
- Ask for copy of the report .You should refuse even to discuss the report with your case manager until you have a complete copy—not just portions of it or the case manager version of what it says.
- If the examination was in any way unfair -very brief or superficial, or taken without first getting a thorough medical history from you or your symptoms—then point this out to the case manager/workcover. And tell the them that the friend or family member who attended the IME with you can support your contention.
- Point out to workcover any inaccuracy or incompleteness in the report, as an indication of its unreliability as a true measure of your injuries. If possible, use material from your own medical records to point out the problem.
- Contrast for the workcover case manager the very brief extent of the IME with the much more significant time your own treating doctors have spent diagnosing and treating your injuries.
- If the IME report is extremely negative and the case manager is relying on it heavily in denying you a fair outcome (i.e. fitness for work when you are not fit etc), you may want your own doctor—preferably a specialist who has been treating you—to write a response. Show your treating doctor the IME report and ask if the doctor would be willing to write a letter countering it.
- Ask for information about the doctor’s relationship with the insurance company. Put in writing to the workcover agent/case manager a request for: the number of IME referrals the insurance company has given the particular doctor over the previous 5 years; the amount of money the doctor is paid for each IME; how many IMEs the doctor has performed for defense lawyers over the same period. There is no way workcover will provide you with this information. But refusing to provide it may put workcover on the defensive a bit in relying on the report while negotiating a fair(er) outcome with you.
[Article dictated by WCV and manually transcribed on her behalf]