My archives of old Tamara shadow posts - #1: IME / QME / AME Advice Consolidated

[sunkiss]

hello.... I noticed that a few people wanted some of tamarashadow's old posts. I did happen to save some of them since I found them super helpful. I saved them either as webpages archives or PDF files though, so the easiest way for me to repost is to cut and paste her words into these threads.

hopefully these will be helpful.


#1) IME / QME / AME Advice Consolidated



I get so many questions via PM on how to handle these exams, so I searched all of my posts for my "advice" and it is just a friend's advice, I am not your attorney nor do I promise or guarantee anything but that we all may be dead someday. Use it at your own risk..

AME = Agreed Medical Evaluater - both sides picked this guy as the tie-breaker on all or part of the issues. Best to see the AME letter BEFORE you go, and the Medical Records list, to make sure the medical records are complete, and the letter is not skewed against you. Also, request that YOUR attorney be the attorney responsible for getting the records delivered. You cannot give an AME records yourself.

QME = Qualified Medical Evaluator - in CA, this is a doctor other than the Primary Treating Physician (PTP) who is giving his "expert" advice after an exam & reading test / meds. Sometimes has no value, sometimes can rule a case.

IME = Independent Medical Evaluator - in CA, usually ordered by the judge if the parties can't agree on an AME and the court is demanding a new and final exam. In other states, this is the same as a defense exam.

Defense attorney - represents the insurance company, and/or employer if employer is sued for wrongful termination.

Applicant attorney - represents the worker.

Take a copy of ALL of your medical reports, testing results, etc. You should be keeping these anyways, so that when / if you go to a new doc, they have your full background. Obviously, if you've had a test that came out abnormal, it's going to be hard for that IME to ignore it. If you don't have the test, then the IME doesn't include it in the report, and it will be up to your attorney to then convince a judge that the IME should have had it, and his opinion is untrustworthy because of it...see, a lot of more work for your attorney, that you could cut off right there. Also, if the IME sees a lot of other docs moving in one direction, seldom will they completely change the path - they don't want to be seen contradicting their buddies - but if you come in with "nothing", you can't know what the doc will say.

Dress comfortably, lots of elastic and flat shoes. Leave jewelry at home. If you can't do your hair, DON'T have someone do it for the appt. Be real, not fancy. Don't talk about your pets, your grandkids, your cars, your hobbies - as all of a sudden those can become means by which the doc will say that you're doing more than you do, just by your own innocent chatting. Don't chat.

You can bring a written "history of injury" that is helpful. I just had some doc screw up 2 wks into 2 years on my own history...so it happens. Have your attorney approve it first. List your meds ahead of time, and even symptoms if you have a lot.

Watch if you say you "can't" do something vs. can do it but it will bring pain, freezing, swelling...there is a med-legal difference.

Most investigators follow you to and from the appt. Go home after the appt. Don't go shop, eat or to a movie. Remember, if you're in pain, how could you go to an appt. and then a 2 hour movie??? (If you're like me, you probably doubled your pain meds just to get there, but they don't know that!haha Tell them.)

Don't get stuck on a "name" for your condition - the docs may not like certain diagnoses - stick to symptoms, or relate it as Dr. Who says "x", but keep those symptoms coming.

Don't be rude, funny, sarcastic or angry about work comp or your employer or past doctors. ALL of that can get you a comment in the report. At all costs, DON'T be rude to doctors' staff. They tell.

This doctor is NOT your friend. This doc is paid for by the insurance company. Some are good docs, but almost all are aware of who pays their bills. Nevertheless, I have seen that if they see someone truly injured, with a history of reasonable care, they will issue a report confirming the same. The bad reports I've seen is where the patient walks in "cold", with no records, and gets a "wash-out", meaning, "no disability."

About 1 month later, call and ask for a faxed copy of the report. If they say no, tell your attorney to get it. Then review it carefully for errors. Then your attorney will have your doc review it and criticize or compare it. They can cut off TTD from one report like this, so be calm and make sure you communicate your symptoms and limitations.

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Last edited by tamarashadow : 01-10-2005 at 07:21 PM.


In CA, you take the IME back to your own doctor for dispute and comment and detailed criticism, and they provide a further basis for their own opinion. If your own doctor is not the SAME level of specialty, the your own doctor is supposed to SEND you to a consult in that specialty, with the IME report, and the consult does the writing, and your doctor "refers to and incorporates the findings" of the consult. Then you are ready for a hearing. That's how it works here.

You should not walk blindly into ANY doctors' office you choose - the doc should either be a referral by your own doc, OR, by your attorney, etc. I agree with Dabba that you're risking a hit.

How to Get and Keep Your Records

Ideally, you start with the injury and have your initial report, claim form, and all subsequent exam reports, narrative reports, testing results, radiologists reports, etc. If you haven't gotten these, then work backwards, calling and demanding a copy. Under HIPAA, you are the patient, you have the right to it, and they just need to have you sign a release.

If you have a Fax at home, this is the easiest way to get these records.
If you still have trouble, then you need to bring it to the attorney for immediate requests, before documents are lost or hearings are here. Don't wait.

Make a doctor's list, with each doctor's name, address, phone & specialty. Do it in chronological order.

Make your Current Symptoms, as when you are sitting there, you tend to leave a few out.

Keep your records with the most current report on top. Have one side be tests, the other reports, with the oldest on the very bottom. Use stickeys to separate them. If you can't make your own copies, pay to have a few made at a time.

As you see a new doc, ask his staff when you can call for a copy of the report, and ask that they note on their file that you will be calling. Keep up with the reports as you go, and this makes it a lot easier.

At my own hearing, despite the fact that I sent my attorney my full set of records, with a duplicate for the court - when we went to court the "court file" was empty! He had no file, either. So if I hadn't shown up to court with my set, we would have lost my hearing on treatment, which I waited 8 months for. So this is a biggie folks.

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Last edited by tamarashadow : 01-10-2005 at 07:31 PM.


Regarding bringing a med report and test file for the doctor to have:

It is so much easier for an insurance company's doctor to say "well, if I'd seen this test, then I'd never have said "x""

And, it is a small community of work comp doctors for BOTH sides, so, if they see their friend Joe and Jim and John have all said this worker has something wrong with him, they are LESS inclined to give an opinion that the worker is perfectly fine. They may not agree 100%, but then, that way your benefits can't be turned off, and later, at trial, who do you think the judge will follow - the doctor who saw you all those times and says you're 60% disabled, or the insurance doc who saw you one or two times, and says you're 40% disabled, (or the one who had no reports and just saw you with no background, and said you were fine to return.)

It's a strategy, and it is up to each person to decide how to go.

I personally have gotten and copy each report & test result, as well as my symptoms list and symptoms history, to each new doc. I have a questionable injury in neurogenic TOS, but it is working for me. And, you have to follow the rules, of going to the doctor when you're supposed to for TTD status, and to properly ask for referrals and have them pre-authorized, etc.

[sunkiss]

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Last edited by tamarashadow : 01-10-2005 at 07:22 PM.

The only reason I'd go to an AME is if my case had bad medical reporting. If not, like you said, you meet a guy once and he decides your whole fate? Expecially with RSD like symptoms - I would be worried.

Do a search and read everything we've posted about IMEs. They hold true for AMEs, except you CAN'T bring anything with you.

Ask your attorney to show you the final AME letter. Only one letter, signed by both attorneys, should be submitted. We had one case here where her attorney let the other side submit a letter and it was filled with improper attorney observations. So ask ahead of time, so that you also know what information this AME is getting and will give. Otherwise, ALL of the IME hints are good for you. Also, make sure YOUR attorney submits the WHOLE medical file - the more you have the stronger your case, so often the other side loses records.

Good luck. You need to have a face-to-face with your attorney when you get the report, to rate it and discuss future med and settlement options.

I have never had any AME miss body parts. Each attorney has to agree on a letter to the AME, plus deliver the entire medical record to the doctor.

What you could do is ask your attorney to SHOW YOU THE AME LETTER BEFORE IT GOES OUT and make sure it clearly says what body parts or conditions you guys want an opinion on.

Whatever you do, don't lose patience or talk to the doctor about it. Most AME docs are not working for either side, so you don't want to offend the doctor. Likewise, if the doc asks you a question, listen VERY carefully, and answer carefully - it may have a big impact on your case - but don't give the doc a life time story - that's what I mean by listen carefully.

Is this an AME (agreed medical evaluator) that your attorney has agreed to on your behalf? If so, you are stuck with this doc's opinions on your condition, cause, and future medical needs. What does your attorney know about this doc? Is this a person who is open to RSD? This is an important step in your case, and you MUST know what is going on before you do there. Ask for a face-to-face with your attorney, and ask these questions I've listed, and ask what you will do about your future medical as you don't anticipate any substantial healing or change. Express your concerns about your future need for care, and ask what the differences are between lump sum (no future med, you pay it yourself out of the money) vs. PD every two weeks with lifetime med, or, vs. setting up some sort of structured settlement where you are still responsible for your own care costs, but you are managing some annuities and savings paid for by insurance.

If you do go to this AME, you cannot take a full set of every report and test result with you - but you can check on your attorney ahead of time to make sure he / she sent them ahead with the consent of the defense attorney. A key issue in your case will be causation - did the injury cause the RSD - were you predisposed to it or had a prior injury which is the real cause - and even if you had some prior problems, the thrust of your argument should be that this incident really brought the RSD on. Any aggravation of a prior condition, or any work injury that brings on an otherwise non-work condition, the insurance is still responsible.

If this is an IME / QME, take a brief written history of the injury, your treatment, doctors' list and symptoms. The point is to make this as easy for the doc as possible, and to help substantiate your case, so that you don't forget a key point.

What makes you or your attorney think you are through with treatment and diagnosis - in other words, have you had all of the possible diagnostic testing you can to uncover any / all aspects of this condition? I understand how it started, but did it trigger, for instance, any other conditions like TOS (thoracic outlet syndrome), fibromyalgia, do you have IBS or depression, or anything else that hasn't fully surfaced yet? You are right that by pushing forward fast, your condition may not be fully presented. So you don't want to go to an AME or settle if you are not comfortable that the docs have tagged what you've got. If you're not comfortable, and feel there are more tests or things that can be done that would improve your condition or relieve your pain further - then you aren't "ripe" for this AME. This is something only you can decide.

If you are "ripe", and you're comfortable that your attorney has agreed to a good doc, then this can be a time when you get your future med and disability identified, quantified, with dollars put there, and start discussing the type of settlement you want, and how your attorney can assure you that you will be covered.

I have one friend on this Board who is quite ill from RSD. It moves in the body. She's having some very expensive anesthesiologist's treatments. I'd hate to see you settle for a lump sum, and have your condition change drastically, and be without funds to cover it. Like I've said, Medicare is NOT guaranteed if you settled out a work injury - in fact, Medicare does not want to pay for treatment for these kinds of cases and they are targeting them. But, lifetime medical doesn't give you a lump of cash to help you get out of debt, buy a house, etc. You're living more by check by check. You can settle the PD now, and later, if you feel more stable, THEN offer to buy out your future med. Factors to encourage the insurance company to buy you out later then include if you're using your meds, if surgery might be coming (they don't want that risk!), etc.

This is a lot of info. If you're not comfortable with your attorney or the doc she's agreed to, then don't go to that doc, and find a new attorney NOW. You can't change your mind once the AME has seen you.

I feel a talk with your attorney about how well she knows this particular doc is in order, since that doc will hold your whole life in his / her hands.

Best thoughts. This advice is given as a friend, and is not a guarantee as to your outcome, how work comp works, or any other warranty as each case is fact specific and I do not have enough information, nor do I want it, to provide a legal opinion. These are general ideas to suggest meeting with your attorney to get more information.

[sunkiss]

How To Prepare For an IME Exam
Suggestions on How to Prepare for an Independent Medical Exam (IME)

Some of the information about workers compensation may not be the same in your state so please contact your attorney or state Worker's Compensation Board to check.

The Independent Medical Exam (IME) can be one of the most harrowing part of dealing with an injury. Whether it is the auto insurance company, the workers conpensation carrier, a personal injury litagation or a exam for the Social Security Administration, the person beng examined knows that this one exam could changethe outcome of their care or legal case. Because of how important these exams are, it is imperative that the person being examined prepare for the exam.
One of the most important things to remember is that this doctor is being hired by the other side, the side that wants to prove that you are not disabled or that any disability that you have didn't come from the incident that you claim it came from. Don't expect this doctor to give you any treatment options or even dscuss the case with you.

Make sure that you are dressed in appropiate clothing, clean and well kempt. Remember that you will may be observed from the time that you arrive at the office until the time that your car pull out of the parking lot. This is important because often the reort will state how you sat in the chair, how you got in or out of the car, how you interacted with the staff and/or people in the waiting room.

The following letter was writtin by Sue Hickerson of the Tri- City Support Group in Michigan

"The Independent Medical Examiner (IME) is the doctor that your Worker's Compensation Insurance (carrier) or Employer has chosen. The IME doctor is paid for by the carrier or Employer. The injured employee must go to the IME exam or may have to forfeit their compensation. The carrier must pay the injured employee, in advance of the exam, for traveling expenses.

"You or your attorney can receive a copy of the IME's report by sending a request for the report, certified to your compensation claims person. The carrier has 15 days from the date on the return receipt, to furnish the IME report. If the carrier fails to provide the IME report within 15 days, the carrier cannot use the medical testimony of that doctor.

"You have the right to have a doctor or other person present during the IME examination, at your expense!

"An IME is very SERIOUS! What this person writes about you overrides ALL your doctor. You can have 5 doctors tell the comp insurance that your injury need immediate surgery and the IME doctor can say, I don't see any injury, no need for surgery, return to work with or without restrictions.

"You MUST take a witness with you to the exam. Some attorneys say that your spouse or attorney can go into the exam room with you. If the IME doctor objects, than the IME doctor can say that you were obstructing the examination and your compensation may be suspended. NO agent of your comp Insurance or Employer, this includes REHAB NURSES, has the right to go into your IME examination! Your and your witness should note the time you arrive, the time you go into the exam room, the time the IME doctor arrived, the time he left, and the time you left. Some IME exams last all of 10 minutes.

"Bring all of your X-rays, and other test results with you the day of the exam. Some attorneys say you can object to any invasive procedures, that includes X rays. You should have your attorney help you make the decision on whether you will object to new tests or X-rays before your exam day. This is an important decision to make because the IME can portray you as not cooperating.

"Arrive on time and dress neatly. You want to make a favorable impression. Be courteous to the IM doctor and his staff. They may already have an attitude, so don't antagonize, cooperate with them.

"Make sure that the IME doctor who examines you is the same doctor you were to see. Contact your attorney if there is a problem with this. "Be truthful and brief, you want to give a general history of what happened to you and a rundown on your history of what happened to you and a run-down on the treatment you have had, It is very important for the IME to understand and make sure the IME knows what you current problems are.

"Don't exaggerate or fake any injuries or any part of the examination. The IME doctor will be able to detect this, parts of the exam are designed to detect faking. Also don't hold back, be honest, forthright, and explain your injury as well as possible.

"After the examination is over, make some general notes. If you have an attorney, Call him and let him know what happened while it is fresh in your memory.

"You should see your own doctor the same day you saw the IME doctor. Make sure you have an appointment some time after the IME's. Your doctor will be able to say what He found on the same day you saw the IME doctor. Sometimes the IME's examination will hurt you and your doctor should be able to document this, such as swelling.

" GOOD LUCK ON THE IME EXAM! "

A few extra thoughts that may help:

Make sure you tell how you got injured in the same way every time. Also report your history treatments the same way. Some attorneys might use inconsistencies against you. If you could write it down and take it with you to the IME. so you can offer it to the doctor.

Bring a camera. If your limb looks swollen, discolored, shiny or anything else that will show, take a picture that will show that you were at the IME's office( hold you hand next to his certificate on the wall, foot neck to a name plate from his desk etc.

Even though your Worker's Compensation Carrier paid for the exam, federal law states that you are entitled to all of your medical records. You just state what reports you want released to you in writing. If there is any sensitive information about a psychiatric or drug problem, you must state in your letter that this information can be released. Send this request by certified letter and the reports must be released to you within 15 days.


(special thanks to Deborah for compiling this page!) -John Lester




******** Additional IME Suggestions *******
As you know, the purpose of the insurance company is not to obtain an impartial review, but to obtain a medical opinion which could justify the discontinuance and/or denial of benefits

Preparation is essential to afford any patient a better chance for success in these one-sided and arbitrary examinations arranged by the insurance companies or the long-term disability plan.

As you know, the purpose of the insurance company is not to obtain an impartial review, but to obtain a medical opinion which could justify the discontinuance and/or denial of benefits.

The best ways to prepare for these are to send written certified notice to the insurance company requesting a written reply from the company and/or from the doctor indicating what percentage of his/her practice is devoted to diagnosing and treating patients who are totally disabled by the same conditions as well as obtaining a copy of this M.D.s curriculum vitae including any articles he or she has published which related to CFIDS/ME/FM.

Assuming that this is not timely in forthcoming before the scheduled exam, again in writing, by certified mail, request a continuance of the time scheduled for the exam so that your primary care physician may have an opportunity to review the IME's credentials as stated above. Ask the adjuster to put it in writing to you, the basis for the adjuster or the company selecting this particular MD to conduct the IME.

Also request that any report generated by the IME be simultaneously forwarded to you and your primary care physician and ask the adjuster to put it in writing to you, the basis for the adjuster or the company selecting this particular MD to conduct the IME.

[sunkiss]

If the materials requested have not been satisfactorily provided, then ask again in writing by certified mail return receipt requested that the exam be continued (rescheduled) until such time as you have been provided with the curriculum vitae etc. of the examining IME and the other materials requested.

You should never attend an IME alone Try to have them provide you with an MD who is close to your home. The reason is that you should never attend an IME alone. Have a friend or relative drive you to the IME's office and make the time of the appointment convenient for you and friend or relative. The further away from your home the exam is scheduled, the more inconvenient for you to have a friend or relative take you, stay with you, act as sergeant at arms and bring you back home.

Be sure to have the friend or relative who takes you to this visit be one who is outspoken, not shy and able to intervene in your behalf if, as and when he or she feels based upon your reactions that the exam is going to far, has gone too far and/or is too lengthy and causing your to experience extreme discomfort or excruciating pain. Never go to any such exam without such a friend or relative taking you, staying with you and bringing you home. If during the course of the exam, it is necessary to lie down, use the facilities, or drink a beverage, do not hesitate to have your friend ask as soon as you indicate what (true) reactions you are experiencing during the testing process, which dictates this type of relief. Also, this type and form of relief may be required several times during the IME test. It is imperative that you speak up and tell the IME examiner exactly what it is that is causing pain and/or discomfort to you at the time This is a time for candor not courage. It is imperative that you speak up and tell the IME examiner exactly what it is that is causing pain and/or discomfort to you at the time. If the IME examiner does not heed your explanation, then have your friend or relative intercede (tell him/her off) and explain what it is that is causing the pain or discomfort and/or the need for a break.

Before anyone should even attempt to attend such an IME examination, in addition to the above, you should determine the nature and extent of the testing and the amount of time allocated for the testing. If the time allocated exceeds usual tolerance levels, have the insurance company or the MD examining you break it up into two or three smaller visits, or ask to take home the rest of any written multiple choice exam so that you can finish it at your own more gradual pace.


******
No examining MD cares to have any patient who walked into this office be carried out of his office on a stretcher to an ambulance with sirens wailing and blue, red and yellow lights flashing.
********

In the event of the testing process becomes so overwhelming and you feel extremely sick or are having problems with overwhelming pain, weakness, exhaustion or light headedness etc., and if absolutely warranted, DO NOT HESITATE to let your friend or relative take charge of the situation and call an AMBULANCE on your behalf to take you to the nearest emergency room. No examining MD cares to have any patient who walked into this office be carried out of his office on a stretcher to an ambulance with sirens wailing and blue, red and yellow lights flashing.

Be sure to find out what the IME's supposed "speciality," is and ask him/her how many time he/she has performed IMEs for insurance carrier or solely for examination for opposing counsel and what percentage of times did he/she agree that the patient suffered the symptoms complained of so severely that he/she agreed that the patient was unable to engage in and more importantly maintain gainful employment activity.

Prepare a list of all of your symptoms and a brief explanation as to how each symptom, separately and in combination effect you so that you are unable to attempt and maintain regular employment activity.


In addition to symptoms, list all medical testing which has been shown to be positive. List all medications which you are taking and have taken over the course of the disability and how each medication, if truthful, had a side effect which in addition to your regular symptoms would prohibit you from working. Example: Sometimes the pain is so severe that you are unable to get out of bed even to eat a light breakfast. As a result you take medication to take the edge off of some of the pain. The side effects of the medication are such that you become drowsy, sleepy and have difficulty staying awake and to attempt work under those conditions would pose a severe hazard not only to you but also to public as well as your co-workers.

Prepare a list of all of your symptoms and a brief explanation as to how each symptom, separately and in combination effect you so that you are unable to attempt and maintain regular employment activity. Give the IME a copy of this list and the explanations as to the disabling effect of each symptom alone and in combination. Try to analyze it as experiencing the worst days of the Asian Flu or whatever the IME may understand, 365 days a year, year in and year out, with unpredictable periods of unexpected relief for occasional short durations during any week or month, but that otherwise you are generally (not totally) confined to home for most of each and every day by reason of your physical condition and the medications you try to take to alleviate your condition.

The IME will usually not allow you to explain what really disabled you.

More that likely, the IME will limit your responses to staccato-like answers, allowing you no more that a yes or no answer. I.e. do you ever drive; do you ever make meals; etc. the IME will usually not allow you to explain what really disabled you and how limited you are in doing these chores and not being able to know or plan when you might be able to attempt them.

In addition, if you have done your homework and you know what the IME's supposed speciality is, then you can see another M.D. with the same speciality who knows and understands your disability and have that MD prepare an updated report on your condition to provide to the IME. This should have a bearing on the IME (hopefully) and his/her report may be more inconclusive than negative. Although do not expect miracles.

Also, be prepared in other ways. If the curriculum vitae of the proposed IME MD does not seem to be suitable for evaluating your condition, then in writing by CRR { Certified Return Reciept }, request the insurance company provide an IME MD who has more background, training, experience and treats patients who have been totally disabled by CFIDS/ME/FM i.e. the disease and condition which disables you.

Have the friend or relative who takes you to the IME, keep accurate and simultaneous notes Keep some log as to the correspondence between you and the insurance company and also have the friend or relative who takes you to the IME, keep accurate and simultaneous notes and records of the time you went into the examining room, the nature of the exam performed, the questions asked of you and how they were asked [see above-staccato questions subject to "yes" or "no" without opportunity for explanation] and what if anything else was provided to the IME MD [schedule of symptoms and medications and how they prevent work and/or updated confirmatory report of primary care physician indicating total disability from working and the reasons therefor.]

Finally, do not be surprised when ultimately you see a report which appears to have been prepared for some other patient with some other illness. You might also ask the IME MD what he is being paid to perform the exam and report and be sure to record it in your log book. Also be sure to record in your log book, any other conversations between friend or relative and IME MD and or between you and IME MD or any member of staff.


[This message has been edited by John Lester (edited January 15, 2001).]

[sunkiss]

Independent Medical Examinations
Whenever any person puts his or her mental or physical
condition at issue in any case in which compensation is sought, the
insurance company or other responsible party defending the case has a
right to have a physician of its own choice examine the claimant. The
logic of this general rule cannot be questioned. The manner in which
so-called "independent medical examinations" are carried out is often
fraught with controversy. IF THE CLAIMANT IS NOT PROPERLY PREPARED FOR
WHAT LIES AHEAD, THE CLAIM CAN BE LOST OR SERIOULSY DAMAGED.
The procedural rules governing independent medical examinations vary
among federal and state jurisdictions for tort cases, as well as for
cases involving statutory claims such as workers compensation. Several
general requirements are universal. **** The defending party must give
reasonable notice of the time, place, manner, conditions and scope of
the examination, and the identity of the examiner. Usually, only one
independent medical examination is allowed, unless there is good cause
shown for more. The claimant is not allowed to object to the identity of
the examiner without a compelling reason. ****
In most jurisdictions, the patient is reimbursed for mileage
to and from the examination. The patient may in most jurisdictions bring
to the examination, at his or her own expense, the treating physician,
but this is seldom done. The defending party must pay for the
examination by its doctor. The defending party must provide a copy of
the report to the patient or the patient's attorney within a reasonable
time after the report is available. In exchange, the patient must
provide true copies of any and all reports of each person who has
examined or treated the claimant with respect to the injuries for which
damages are claimed, and a medical authorization to the defending party
to allow it to obtain any and all records, radiological films, or other
evidence of the patient's condition. Any physician-patient privilege
with respect to the condition at issue in the case is deemed to have
been waived by the making of the claim for compensation. The independent
medical examiner is subject to being examined under oath by the
claimant's attorney at a deposition or by cross-examination at the trial
or hearing. If a claimant unreasonably refuses to submit to an
independent medical examination, the claim can be suspended or dismissed
by the judicial tribunal without further ado. *******
The above paragraph outlines the easy part. The hard part is how to
prepare for the examination.
Most physicians who perform independent medical examinations
would really prefer not to get involved in the legal system, but
reluctantly perform this service on an occasional basis as part of their
community service. Their reports are usually straightforward. They call
it as they see it. It is not uncommon in this situation for a legitimate
dispute to exist over the cause of the condition at issue, or the nature
and extent of disability. Reasonable minds can and do differ over these
issues. The trier of fact must resolve the dispute unless the parties
negotiate a settlement.
++++++++++++++++++++++++++++++++++
WARNING!!!!!!!!
Some physicians who perform independent medical examinations,
however, 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 is notorious. It is not unusual for some of these physicians to
charge between $500 - $1,000 for such examinations and record reviews.
If they give testimony, the bill doubles or triples. How much can they
earn in a week, month or year doing such examinations? You do the math.
It pays better than clinical medicine in some cases! *******
****** Such physicians often present an obstacle to a just
resolution of the controversy, because they predictably and regularly
come to conclusions, write reports, and provide testimony quite slanted
in favor of the defense and against the claimant. This type of
independent medical examiner is not "independent" in any sense of the
word. Instead, the examiner is "adverse". Because the examiner so
frequently performs the task, the examiner becomes adept as an
investigator. The examiner assumes the role of insurance adjuster or
claims attorney, playing the role of the devil's advocate. ***********
Examiners who fall into this category are well known to
attorneys 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
weaknesses on cross-examination. Make no mistake about this - the
attorneys know and have their "favorite" doctors. They are well edcated
on who can give excellant reports, and who they can wear down in
testimonies.

The modus operandi of some of these examiners to defeat the
claim is obvious - ATTACK the CREDIBILITY of the CLAIMANT, making the
claimant out to be dishonest. The presupposition is that every claim is
a fraud and must be exposed. The TASK BECOMES ONE of DISCREDITING THE
CLAIMABT, rather than ascertaining the cause of the condition or the
nature and extent of disability.
Everything from the claimant's past medical history, history
of present illness, cause of condition, subjective complaints, objective
findings on physical examination, laboratory testing, diagnosis,
treatment history and prognosis is called into question and can be
discredited if the claimant is not 100% accurate in reciting the facts
during the independent medical examination, or there are any
inconsistencies in any of the old, usually voluminous medical records.
These doctors have a penchant for writing reports that deny that there
is any pathological condition whatsoever. If there is a true malady,
they blame it on a pre-existing condition or a cause other than the
trauma that is the subject of the litigation. If that doesn't work, then
they minimize the extent of the injury.
There is only one way to go into an independent medical
examination, no matter who is performing it.
COMPLETE AND DETAILED PREPERATION AND EDUCATION OF THE CLAIMANT IS
REQUIRED. COUNCIL AND THE CLIENT SHOULD MEET PRIOR, if possible, well in
advance, and go overall prior relevant medical records. No prior doctor
visit for the same condition should be overlooked, because the claimant
will certainly be asked about it during the independent medical
examination. An innocent lapse of memory by the claimant when questioned
by the independent medical examiner about a prior knee injury, back or
neck problem, visits to a chiropractor, absence from work, fender bender
with an emergency room visit, or x-ray of the same bone or joint can
prove to be all the examiner needs to conclude that the claimant is
trying to hide something, and that the claim is illegitimate.
The claimant should be prepared by counsel to address the following
subjects with the independent medical examiner in detail:
Prior health and medical history, including any
and all traumatic injuries from vehicle accidents, work accidents,
falls, and sports accidents, and all visits to all health care
providers for the same or any related condition;
Prior social and recreational activities; Events
on day of accident, in great detail; Claimant's
role and responsibility for the accident, to show contributory
negligence; Detailed itemization of all injuries
sustained; Chronological medical history
subsequent today of accident, with treatment by each health care
provider; Timetable for acute and chronic stages
of each injury, how pain was rated on each prior doctor visit, what
hurts now, and how pain is rated now;
Prior and subsequent accidents with injuries, if
any, of any type;
Claimant's opinion of the nature and extent of
disability and impairment of each area of the body that was involved;
How activities of daily living and recreational
activities are affected;
Temporary restrictions imposed by doctors;
Functional capacity evaluations - permanent
restrictions imposed by doctors;
Physical exertion category of work claimant is
capable of doing with restrictions;
Transferability of skills from work done prior to
injury;
Time lost from work, with specific dates;
Work history after accident;
How injuries have affected ability to do basic
work activities;
Future treatment expected.
With thorough preparation before the independent medical
examination, the claimant can avoid the traps and pitfalls of an
inaccurate or inconsistent history, upon which skilled examiners are
often so ready, willing and able to pounce.
There are certain tests, known as
"Waddell's Non-organic Signs," that most independent medical examiners
employ for the purpose of identifying psychological factors in patients
who claim low back problems resulting from trauma. It is helpful to
know what the signs are, in order to avoid so-called "false positive"
results upon which too many independent medical examiners base their
adverse opinions. The doctor will perform a hands-on examination, and
test for each of the following, looking to see whether the patient
reacts in a fashion indicating some pathology, under circumstances where
the test results should be negative:

[sunkiss]

A. Tenderness:

(a) if the skin is exquisitely sensitive and tender
superficially, to a light touch or pinch over a wide area beyond the
normal distribution of the sensory nerves, the doctor will suspect
exaggeration;
(b) if the anatomical structure is exquisitely sensitive and
tender to a deep palpation, over a wide area beyond the anatomic region
of the injury, rather than only in the localized area of injury, the
doctor will suspect exaggeration.

B. Simulation Tests:

(a) if the doctor presses straight down on the patient's head,
while the patient is standing (axial loading), and the patient reports
low back pain, the doctor will suspect exaggeration; (b) if the
doctor rotates a standing patient's shoulders and pelvis simultaneously,
in the same plane, and the patient complains of low back pain, the
doctor will suspect exaggeration.
C. Distraction Tests

(a) if the doctor finds something wrong, and then while
distracting the patient, does another test of the same area without
explaining what he is doing or why, and the patient has a negative test
or doesn't give a full effort, the doctor will suspect exaggeration.
A common example is to ask the patient to raise one leg against
resistance while lying supine. If the opposite leg does not press down,
for leverage, then the doctor knows that the patient is not giving a
full effort to raise the leg, ostensibly to exaggerate; Another example
would be to walk away from the patient to write something in your
records, and casually talk to you. If you respond, and "turn" your head
in the direction of the doctor, he may and will make note of this,
espicially if you have told him you CAN NOT turn your head/neck because
of the pain, etc from that area. Chances are, he has already checked
you for movement in this area, leading you to believe that this portion
of the test is complete.
D. Regional Disturbances

(a) If the patient complains of undue weakness, such as the
giving way of muscle groups, the doctor may suspect exaggeration;
(b) If the patient claims numbness, tingling or pain over an area
outside of the dermatomal distribution where the nerves from the spine
lead down the leg into the toes, the doctor may suspect exaggeration.

E. Overreaction

(a) If the patient excessively cringes, grimaces, or otherwise
displays unnatural responses to sensory, motor or reflex tests, the
doctor will suspect exaggeration.


For more details, please see

http://www.gelmans.com/Articles/Waddell97.html