What Is an Independent Medical Examination (IME)?

Originally posted on https://www.injuredcalltoday.com/what-is-an-independent-medical-examination-ime/

In theory, the IME (Independent Medical Exam) is a good thing. It should help the insurance company or the Workers’ Compensation Board (or the jury in a liability claim) to evaluate and value your claim. In the best case, the IME helps to:

• Identify the injuries suffered by the worker in the work-related accident
• Understand the severity of the injuries
• Identify the medical treatment needed
• Provide the Worker’s Comp Board (or jury) with a second opinion about the above
• Identify and weed out false claims

Unfortunately, the IME is more often just an insurance company tool used to deny or slash your injury claim.

IME stands for “Independent Medical Exam.” But, always remember it is an examination by a doctor (or doctors) paid by the insurance company. That is not “independent.” Instead, expect the IME doctor to disagree with the doctors you have hired to provide your medical care. The insurance companies like to suggest the IME is a kind of “second opinion” of the recommendations of the worker’s treating doctors. That’s not really true. The truth is the IME doctors do not want to “bite the hand that feeds them.” And you don’t feed them—the insurance companies do.

One, since the IME doctors get paid by the workers’ compensation insurance companies, they have an incentive to please the insurance companies. If they do that, the insurance companies keep them on their preferred IME doctors’ lists. That means they get paid to conduct more IMEs in the future. You can see why they might want to say what they think the insurance company wants them to say.

Two, most IME doctors do little other than conduct IMEs. These are often doctors who couldn’t make a good living treating patients. They have found an alternative to practicing medicine. They can make a great living helping insurance companies deny or limit insurance payouts. That pleases their masters the insurance companies so they can keep their lucrative position despite not being so good at practicing medicine.

Keep the two facts above in mind when you consider whether the IME has your interests in mind.

The Independent Medical Examination (IME) is a necessary evil, but you can make the IME work for you, keep reading to find out how.

In New York, if you are injured on the job or in an industrial accident, you have a New York workers’ compensation claim. If you have a workers’ compensation claim, sooner or later, you’ll probably have to submit to an examination by the insurance company doctors. They call this examination an “Independent Medical Exam (IME).” There is nothing “independent” about an IME. The doctors who conduct these exams are paid by the very same insurance company that wants to pay you as little as possible for your claim.

The New York workers’ compensation system was created to protect you, the worker. Unfortunately, the insurance companies have their hands all over the system. We’ll try to explain in this guide how you can protect yourself, and your claim, from insurance company shenanigans when it comes to an “Independent Medical Examination” or “IME.”

By following the suggestions in this guide, you can do just that—protect yourself and protect your claim from insurance company games. That’s how you make the IME work for you instead of against you.

Also, see our general guide to New York Workers’ compensation: New York Workers’ Compensation Made Simple.

“Independent” medical examinations are also a part of the liability claim process in auto accidents, slip and fall, trucking wrecks, or products liability cases. In a liability case, the injured party is called the “plaintiff” (like the “claimant” in a workers’ compensation claim). In a liability case, the IME is sometimes called a “DME” by plaintiffs’ attorneys. That stands for “Defense Medical Exam.” As with the workers’ compensation IME, the liability IME is anything but “independent.” In both cases, the IME is just another tool for insurance companies to deny or limit your claim.

There are minor differences between the workers’ compensation IME and the liability IME. In a liability claim, an IME is not part of the normal claims process but is created by the civil litigation “Discovery Rules,” NY CPLR § 3121 (2012). These rules say that if your physical condition is “in controversy” in a lawsuit, the other party has a right to demand an examination.

In a liability claim, if you are being asked to submit to an IME/DME, you are (1) already a party to a lawsuit and (2) probably already have a lawyer representing you. With a workers’ compensation claim, by contrast, you may well be asked to submit to an IME before you have legal representation.

This guide mostly references workers’ compensation rules because the workers’ compensation IME is more structured under the law. Either way, though, whether you must submit to a workers’ compensation IME or a liability IME, this guide will help you to know what to expect, what to do, and what not to do, at your IME

You do have to go to the insurance company’s IME doctor. That does not mean you have to get your medical treatment from the insurance company (or employer) doctors.

In some situations (such as if the insurance company uses a PPO) you may have to get your initial treatment (for at least the first 30 days) from an insurance company doctor. After that time (even under a “PPO”), you can select your doctors, as long as they are approved by the New York Workers’ Compensation Board).

Insurance companies’ treating doctors, like their IME doctors, are not usually your best option for treatment. They are only “insurance company doctors” or “employer doctors” because they work hard to save the insurance company money. That means your health is not their first concern. Saving their bosses, the insurance companies, money is their main goal. That way, they stay on the insurance company’s “approved” list.

How do they save the insurance companies money? By treating you as minimally and conservatively as possible. They don’t usually stay up with the latest medical trends (those things can be expensive!). They may refuse standard tests for your condition such as MRIs since those tests are pricey. They are also prone to discontinuing treatment before full recovery by the patient. Don’t get your treatment from insurance company/employer doctors.

Always remember you ultimately have the right to choose your treating doctors. Contact a competent New York workers’ compensation attorney if you are having trouble getting the insurance company to approve treatment by your chosen doctors.

Your insurance company may offer a nurse case manager to “help” you with your claim. These licensed nurses are supposed to help you to understand your rights under the workers’ compensation system. They should also act as an intermediate between you and the insurance company to help you get the right treatment. That sounds good. But beware.

Like the IME doctors and the insurance company doctors, Nurse case managers get paid by the insurance company. That means they will have some loyalty to the people that pay their salaries. Just like the IME and insurance company doctors, the nurse case manager may have an incentive to get you back to work as soon as possible to save their bosses the insurance companies money.

Also, important, if you let the nurse case manager go with you to your appointments, you will lose your “medical privilege” with your doctor. Everything said between you and your treating doctor gets shared with the insurance company. Don’t let that happen. You do not have to allow the nurse case manager to attend your medical appointments.

Because they work for the insurance company, they report ANYTHING you tell them to the insurance company. Be careful what you tell them about the accident, your injuries, your disabilities, your claim, or your daily life.

These are some commonly reported complaints about nurse case managers:

• nurse case managers may have reason to minimize your injuries;
• nurse case managers may try to affect your doctor’s medical opinions and treatment decisions;
• nurse case managers may push you to return to work too soon.
• All the above may mean you are sent back to work before your full recovery. That will harm both your health and your claim.

Talk to your workers’ compensation attorney for more advice on how to deal with the nurse case manager. Your attorney can help protect you from nurse case managers’ tactics to get you back to work too soon or without proper medical treatment.

The insurance company is likely to send you for an IME if your claim is serious, or at all complicated. The purpose of an IME is to save the insurance company money on your claim. Some reasons you will be asked to submit to an IME include:

• The insurance company wants to say you are not injured as seriously as you claim;
• The insurance company wants a way to disagree with treating doctors’ diagnoses;
• You claim permanent disability;
• Your claim is getting expensive for other reasons or taking too much time, and the insurance company wants a reason to shut it down;
• You have an injury liability lawsuit.

In the above cases, the insurance will send you for an IME to get a reason to deny or limit your claim. They know their IME doctors will undervalue your claim, your injuries, and you.

IME doctors, as mentioned above, are not your typical doctors. They look like real doctors because they have medical licensing. But they do not practice medicine like real doctors.

Some doctors who have found they can’t make it in private medical practice. Some have had disciplinary action that makes it tough for them to draw patients to normal practice. Some have lost their licenses in other states or even have criminal convictions, both of which make it hard for them to practice traditional medicine. Some are retired from private practice. They continue to make a living without the need to stay up with medical trends. They can also avoid potential liability for medical mistakes.

IME doctors have one thing in common. They have found a niche that allows them to use their medical licenses to earn an impressive living. They do that by helping insurance companies minimize your work-related injuries. Regardless of why they conduct IMEs, these doctors are paid handsomely by the insurance companies to do just that—to minimize the extent of your injuries.

In short, the answer is yes. Or, at least, if you refuse, the insurance company will have a basis to deny, limit, or cut off your claim to both wage and medical benefits. When you filed your workers’ compensation claim, you essentially agreed to submit to the IME. So, don’t refuse the IME—make it work for you.

In a liability lawsuit, you have to submit to the IME/DME because the Discovery rules say that you do.

REMEMBER: THOUGH YOU HAVE TO ATTEND AN IME, YOU STILL HAVE THE RIGHT TO BE TREATED BY DOCTORS YOU CHOOSE.

Workers’ compensation insurance companies have a right to demand an “initial” IME once you file your claim. Based on this initial IME, the insurance company can deny or limit benefits. You can appeal the denial, but it takes weeks or months before the Board decides the appeal. In the meantime, the insurance company is not paying your claim. By cutting off claims prematurely, the insurance company hopes to force you to return to work despite your injuries. Once you do, that will destroy or limit your claim. Just this fact saves insurance companies millions.

The IME can be used by the insurance company to limit or deny your New York workers’ compensation claim in several other ways:

• The IME doctor may say you are not hurt;
• The IME doctor may say your injuries are not from the work accident but are from age (degeneration) or a different accident;
• The IME doctor may report you as “malingering” which means you are not hurt or not hurt as bad as you claim to be;
• The IME doctor may say you can return to work despite what your doctor says to the contrary;

Any of the above can and will impact your claim.

Also, you do not have regular “medical privilege” with the IME doctors (see AMA Code of Medical Ethics Opinion 1.2.6). Everything you say to the IME doctor can and likely is reported to the insurance company. That’s another way the insurance company can use the IME to limit your claim, by using the IME to gather not medical information about you.

As said above, the worker may give up and go back to work against medical advice. Or, the worker may pay out of pocket (or with their health insurance) to get their treatment. Either result is a win for the insurance company and a loss for you.

Whether it is a workers’ compensation IME or a liability IME/DME, the exam will be almost identical.

Don’t expect to spend much time in the actual IME. You will most likely spend more time in the waiting room than in the IME. Most IME’s take only ten to twenty minutes at the maximum.

Here is what you should expect at the IME:

• The IME doctor will take a medical “history”;
• The IME doctor will run down a list of questions about the accident and your injuries;
• He or she may ask you about prior injuries also (be sure to be truthful about these);
• Before the IME, the doctor will have reviewed the records of the treating doctors and may have questions for you about those;
• You may get a brief physical examination which might include measuring (in “degrees”) your ability to move affected joints or otherwise measuring your physical limitations. The IME doctor is supposed to follow and apply the New York disability guidelines (http://www.wcb.ny.gov/2018-Impairment-Guidelines.pdf), but there is room to fudge under the guidelines;
• the IME doctor will likely record his or her thoughts and impressions during the exam;
• Don’t expect medical advice or treatment at the IME. If the IME doctor gives medical advice, be sure to confirm it with your treating doctors. The IME doctor is not hired to make sure you get proper medical care but is hired to gather evidence to use against you in your claim.

This section and the next section list the things you should do at the IME and the things you should not do. Study these lists a week or so before your IME and be prepared so that you do all that you should do and avoid all that you shouldn’t do.

• TELL THE TRUTH. Whatever you do say at the IME should be the absolute truth. The most damaging thing for any insurance claim is a lie. Insurance companies know this, and they are very good at sniffing out lies. One simple lie can destroy an otherwise good claim;
• Request a copy of everything provided to the IME doctor by the insurance company, including its letter requesting the IME. Send a copy of the request to the New York Workers’ Compensation Board;
• Take someone with you to observe the IME and take notes. New York statute (WCL 137, paragraph 7) lets you do this (also this case);
• Give a full history of the accident. Tell the IME doctor exactly how the work injury happened. That substantiates that your injuries are work-related. Only work-related injuries get compensated by workers’ compensation;
• Give complete information about all injuries. Don’t just answer the IME doctor’s questions, but go beyond in this area and make sure to tell the IME doctor about ALL injuries from the on-the-job or industrial accident;
• If asked, tell the IME doctor about PRIOR injuries. A prior injury aggravated at work is compensable by workers’ compensation. Just don’t lie and claim you did not have the prior injury. You are entitled to compensation for aggravation of an old injury.
• Tell the IME doctor about all LIMITATIONS as a result of your injuries;
• Tell them what you can no longer do that you used to be able to do. That may look like this: “I can no longer mow the lawn, ride my bike, or hold my baby as a result of my injuries.” Or it may look like this: “my wife and I can no longer have sexual relations because of my injuries.” That may embarrass you to say, but it’s an important part of your claim, so you need to say it;
• It also means telling them about what you can still do after the accident, but only now with limitations such as pain or use of a cane or for a limited time. That may look like something like this: “I used to run 5 miles every other day, now I have to stop at 2 miles because my back hurts too much.” Or like this: “I used to do my grocery shopping in an hour, but now it takes me two hours because I have to stop and sit every ten minutes”;
• Take your time and be consistent with what you have told others and be thorough. IME doctors look for inconsistencies in what you tell them versus what they read on other records;
• Ask your attorney if you should fill out a written medical questionnaire, or if you should only answer those questions orally;
• Ask your attorney if you should attempt to videotape the IME. The law (WCL 137 paragraph 7) does not say you can or cannot videotape the IME, though at least one New York court has ruled you can’t. Many IME doctors will refuse to conduct the IME if you insist on videotaping. That can damage your claim;
• Ask for a copy of the IME report. Send a copy of the request to the New York Workers’ Compensation Board;
• Review the IME report and bring any errors or inconsistencies to the attention of the insurance company;
• Consider asking your treating doctors to write a response to the IME report;
• Make the insurance company tell you how many IME reports that IME doctor performs for them;
• Consider asking for a second opinion from another IME doctor;
• What not to say to a workers’ comp doctor during an IME? DO NOT LIE, ALWAYS TELL THE TRUTH. The insurance company will try to verify what you say at the IME and elsewhere, so don’t make anything up. The insurance company may have you followed by an investigator. They hope to get a video of you doing the things you say you can no longer do. Always keep this in mind and do not try to do things that you shouldn’t be doing. You may be caught on tape doing something that makes it appear you are not hurt or not as hurt. That can destroy your claim.

Many attorneys find it helpful if you make notes after the IME to give to your attorney. Talk to your attorney first, though, so you don’t destroy the attorney-client privilege.

Also, talk to your attorney before you write out responses to the above questions. Any written answer may become discoverable if not covered by a legal “privilege.”

If you are unsure of your rights or of your ability to protect your rights against insurance company misconduct, talk to a competent New York Workers’ Compensation attorney BEFORE THE IME.

This section and the previous section list the things you should do at the IME and the things you should not do. Study these lists a week or so before your IME and be prepared so that you do all that you should do and avoid all that you shouldn’t do.

• DON’T LIE. That is sort of like TELL THE TRUTH above. Lies will kill your claim. You are not smart enough to lie about your claim. Don’t think that you are;
• Don’t MALINGER. Malingering is either exaggerating or faking injury or illness. When caught (and you will be), you destroy your claim.
• Don’t skip through the parking lot and then start limping when you get inside the IME doctor’s office. That is a form of malingering. Not only will you be caught by an investigator, but many IME doctors watch for this too. One well-known IME doctor is known for his upper-level office. From that office, he looks down on the parking lot and watches his IME subjects as they approach his office. Many an IME report from this doctor tells about him watching the patient walk without difficulty until reaching the IME office, to then shift into a limp. That will kill your workers’ compensation claim;
• Don’t take written materials with you to the IME. They could become “discoverable” at some point if you do.

You Have a Right to Legal Representation

You have an absolute right to legal representation for your New York Workers’ Compensation claim. Your attorney cannot charge you directly but will get paid a fee our of your claim. The Workers’ Compensation Board must approve all fee requests. (Jack link to attorney fee section of WC article)

The workers’ compensation system is complex and complicated. If you don’t understand your rights, get help from a competent New York workers’ compensation attorney. If you are not being treated as you should by the insurance company, get help from a competent New York workers’ compensation attorney.

We hope this guide has been helpful.