You have done everything right since the work accident. You completed a work injury report letter and notified your employer immediately. You chose a treating physician from the list of workers compensation doctors given to you by the employer. You filed a claim for benefits with the Workers Compensation Commission. And you have followed every recommendation made by your doctor so that you can recover and get back to work.
But now the workers comp insurance company or third party administrator (TPA) is demanding that you attend a defense Independent Medical Examination with a doctor that you have never heard of and whom has never examined you before. You have several questions:
The purpose of this article is to guide you through the Independent Medical Examination in workers compensation so that you understand what it is, what your legal rights and obligations are, and what you can do to increase the likelihood that the IME helps your claim and does not hurt you.
Handling the Independent Medical Examination correctly is often the difference between a workers compensation settlement that provides financial security to you and your family, or receiving a small amount that leaves you struggling. An unfavorable IME report can devastate your claim and your family’s well-being. And IME doctors are often biased in favor of the insurance company.
Keep reading to learn more. And call me if you are looking for a Virginia workers compensation lawyer or Richmond car accident attorney that is consistently voted one of the best by his peers and past clients: 804-251-1620 or 757-810-5614. I can guide
An IME is a one-time medical evaluation conducted by a physician with whom you have no treating relationship and have likely never seen or heard of before.
In theory the IME doctor should conduct a fair and objective evaluation of you and issue a written report with objective findings. The workers comp IME, however, is often unfair for reasons discussed in greater depth below. In fact, many personal injury attorneys think the word “Independent” should not be used because there is often a bias toward the insurance company against the injured worker or accident victim.
Usually your employer or its insurance company will ask for the IME.
The Workers Compensation Commission also has the power to ask you to attend an IME under Virginia Code Section 65.2-606. But this is rare. I have handled more than 1,000 workers compensation cases and not once has the Commission requested an IME.
In my experience the insurance company will ask you to attend an IME if it disagrees with your treating physician’s opinions about:
Always remember that the insurance company is asking the doctor to find information to justify a denial of your claim or the payment of a lower settlement amount. The IME is used as a cost-savings device for workers comp and liability insurance companies.
It may also request an IME if the parties are trying to settle the workers comp claim, but expert witnesses disagree on the need for and value of future medical treatment.
The party asking for the IME must pay the physician that completes the examination. If the insurance company wants you to attend a Defense Medical Examination, then it must pay for it. Usually doctors charge from $1,000.00 to $5,000.00 to examine an injured worker or accident victim and write a report.
If the Workers Compensation Commission orders an IME, then the Commonwealth of Virginia will pay the fees and expenses of the physician.
You will never have to pay for an IME unless you disagree with your treating physician’s opinions and decide to see a new doctor for a second opinion. I have hired IME doctors to examine my clients and help present their claims.
The insurance company may ask you to attend an Independent Medical Examination at any time after your work injury and the filing of a claim.
This means you may receive a request to attend an IME before the insurance company accepts the claim or offers an Award Agreement form.
In my experience insurance companies will ask you attend an Independent Medical Examination if you:
In most cases the insurance company selects the physician who will conduct the Independent Medical Examination, without seeking input from your attorney.
Insurance companies spend a lot of time, money, and resources figuring out which doctors are conservative on workers compensation issues and which doctors are more claimant friendly. Insurers like conservative doctors and use them for Independent Medical Examinations.
A conservative doctor is one that:
Having represented hundreds of injured workers, I see insurance companies use the same few physicians for IMEs in multiple cases. Some doctors earn more money examining workers comp claimants and writing unfavorable reports than they do treating patients. In fact, many IME doctors are semi-retired physicians who supplement their retirement income by writing reports that harm injured workers’ claims.
In workers comp the insurance company usually sends both you and your attorney a Notice of Defense Medical Examination. Sometimes you will have advance warning that the insurance company wants you to attend a DME. But often you will not.
If you are unable to attend the IME for any reason, let your attorney know as soon as possible so that he can try to reschedule the examination on your behalf.
Before the Independent Medical Examination the insurance company will send the IME doctor your medical records, diagnostic reports, and other documents it has obtained through the workers comp discovery process.
More than likely the insurance company’s defense attorney will send a letter to the doctor telling him or her what issues are disputed and giving suggested answers to questions the insurance company may ask.
When you arrive the IME doctor may ask you to complete various questionnaires and forms. This is where having an attorney helps. You should have already received these forms and questionnaires so that you could discuss correct and appropriate responses with your attorney.
After you complete the forms, you will meet with the IME doctor. The doctor should explain that no physician-patient relationship exists. It is important that you remember this throughout the examination. The IME doctor is not your friend.
Whatever you tell the doctor may find its way into the IME report – especially if it hurts your case and helps the insurance company. The doctor may also include observations in the report. So if the doctor sees you get up and down from the table with no problem and you suffered a back injury, the doctor will put that in the report. The judge will then evaluate the inconsistency between your hearing testimony and this observation during your trial.
During the exam the doctor may ask you questions about any pre-existing conditions, how your work injury happened, and what treatment you’ve had so far. You should prepare for these questions before the IME.
You should also ask the IME doctor whether he or she has any recommendations for your medical care.
After the IME the doctor will send the parties a copy of his or her written report and opinions. You should review this report with your attorney and point out things you disagree with.
The Independent Medical Examiner’s report can play an important role in your workers comp case.
First, let’s discuss an uncommon situation – the favorable IME report. If the IME report supports your position and is consistent with your treating doctor’s opinions, there is a high probability that you will win your case.
Now, let’s discuss the most common situation – the unfavorable IME report.
Depending on the examining doctor’s reputation, the judge hearing your case may give significant weight to the report. If the report finds that you have reached MMI and are capable of returning to full duty work, you may lose benefits.
On the other hand some IME doctors have poor reputations from years of working for insurance companies and issuing reports finding that the injured employee is “faking” it no matter the type of injury. An experienced workers comp attorney will tell you if your IME doctor has a bad reputation with the Commission. In these situations the judge is unlikely to give great weight to the Defense Medical Examination, if any.
Usually the best way to challenge an IME doctor’s opinions is to have your treating physician review the report and write a report contradicting the opinions. Another way to challenge the IME is to have your attorney depose the IME doctor. This is effective if the IME report shows that the doctor was unfamiliar with your case or made blatant mistakes.
When you seek monetary damages or workers compensation benefits for your mental or physical condition, the insurance company or other party defending the case may have a doctor of its own choice examine you.
The insurance company’s right to make you attend an IME is found in Virginia Code Section 65.2-607, entitled Medical Examination; Physician-Patient Privilege Inapplicable; Autopsy. It states:
A. After an injury and so long as he claims compensation, the employee, if so requested by his employer or ordered by the Commission, shall submit himself to examination, at reasonable times and places, by a duly qualified physician or surgeon designated and paid by the employer or the Commission. However, no employer may obtain more than one examination per medical specialty without prior authorization from the Commission, based upon a showing of good cause or necessity. The employee shall have the right to have present at such examination any duly qualified physician or surgeon provided and paid by him. No fact communicated to, or otherwise learned by, any physician or surgeon who may have attended or examined the employee, or who may have been present at any examination, shall be privileged, either in hearings … or any action at law brought to recover damages against any employer [under the Workers Compensation Act].
In Virginia workers compensation there are limitations on Defense Medical Examinations.
Common reasons to object to an Independent Medical Examination include:
If any of these grounds for objection exist, make sure you file a formal objection with the Workers Compensation Commission and ask the deputy commissioner to rule on your objection before the date of the IME.
Refusing to attend the workers compensation Independent Medical Examination puts your lifetime medical benefits, wage loss payments, including temporary total disability and temporary partial disability, and permanent partial disability benefits at risk.
Virginia Code Section 65.2-607(B) explains the penalty for ignoring a scheduled IME:
If the employee refuses to submit himself to or in any way obstructs such examination requested by and provided for by the employer, his right to compensation and his right to take or prosecute any proceedings under this title shall be suspended until such refusal or objection ceases and no compensation shall at any time be payable for the period of suspension unless in the opinion of the Commission the circumstances justify the refusal or obstruction.
Put simply, you may stop receiving workers comp payments or medical care until you attend the IME appointment – unless you have a good reason to refuse to attend.
If there is a dispute over whether your refusal to attend the DME is justified, the Commission will look at the facts from your viewpoint. Be careful though. This does not mean you will win on the issue automatically.
In my experience, the Commission may find the following reasons to serve as a reasonable basis for refusing to attend or to complete the Independent Medical Examination:
When possible, file a Motion to Quash the Defense Medical Examination if you cannot attend for some reason or if your authorized treating doctor does not think you should attend. If a deputy commissioner rules on the motion before the date of the IME, you can avoid the suspension of your benefits and protracted litigation.
You are allowed to cure a refusal to attend or to participate fully in an Independent Medical Examination.
If the insurance company is threatening to suspend your workers comp payments or medical benefits because you missed an IME appointment that you are now willing to attend, send a letter to defense counsel or the claims adjuster stating that you will attend an IME if it is rescheduled and giving your available dates. Send the letter by certified mail, with a courtesy copy filed with the Workers’ Compensation Commission.
If the Workers Compensation Commission has already entered an Order suspending your workers comp benefits because you did not attend an IME, you should not only send the above letter to the insurance claims adjuster or defense counsel but also file a change in condition claim seeking reinstatement of benefits, with a copy of the letter attached.
There are several things you can do before the Defense Medical Examination to make yourself more comfortable at the exam. For example you should write down and review the following items with your attorney before the DME:
After discussing the written summary with your attorney, review it a few times before the IME appointment. But do not give the written summary to the IME doctor.
The IME report is important to your workers comp or personal injury case. A favorable report increases the likelihood that the insurance company will make a fair settlement offer. An unfavorable report increases the likelihood that the employer will file an application to terminate or suspend your workers comp benefits, forcing you to litigate your case for much longer or to accept a lower settlement offer.
Understanding the importance of the Independent Medical Examination in tort law, I recommend you follow these tips on the date of the exam and when meeting the IME doctor:
1. Leave early. The IME process is nerve-wracking, as is. Give yourself plenty of time to arrive at the IME on time so that you are less stressed.
2. Carry the IME doctor’s telephone number with you. If you get lost, or are running late, call the doctor’s office for help or to give notice.
3. Leave the day open. To reduce your stress, do not plan any activities after the IME in case it goes long. Those of you with children or other guardianship responsibilities may want to ask family members or friends for help.
4. Be pleasant and have a good attitude. Even though IMEs are often used by insurance companies to limit the value of cases, you should still treat the doctor with respect. While a good attitude does not guarantee a fair and objective defense medical examination, a poor attitude can almost always guarantee a negative medical report.
5. Listen to the doctor’s questions closely. If you do not understand a question, ask the doctor to rephrase or repeat it. Do not guess or rush through your answers.
6. Tell the truth. Expect the doctor to know about any pre-existing conditions or prior injuries you may have had at the time of the accident, or whether you have a history of arthritis or degenerative disc disease.
7. Do not discuss the status of settlement negotiations or whether you want to settle your case with the doctor. Doing so could result in the doctor’s report stating you are malingering or exaggerating your symptoms to get a larger payout.
8. Do not discuss any frustration, problems, or anger you have with your employer, the defendant, or the insurance claims adjuster.
9. Do not discuss the pending claim, hearing, or trial with the IME doctor.
10. Be specific when describing the activities that increase your pain and other symptoms.
11. Remember that the doctor is watching to see if you have trouble walking to or from the examination room, bending over to touch your toes, getting up and down from a seated position, or getting onto the exam table. Act as though you are being watched at all times.
12. Do not agree to take any written tests or undergo any diagnostic examinations unless you were told about them before the DME.
13. Do not agree to check into a hospital or medical facility not agreed upon previously.
14. Keep track, in writing, of what happens during the exam and how long each part of the exam takes place. Break your written summary into 5 to 10 minute intervals. If possible, do not let the doctor know you are documenting the exam in writing.
15. Take a friend, family member, spouse, or doctor to the examination to observe. This person can testify on your behalf at hearing if the IME doctor’s report is inconsistent with what actually happened on the date of the exam.
16. Do not sign a waiver giving up your right to pursue a medical negligence claim if you are hurt during the IME. You can sue the IME doctor for medical malpractice in limited circumstances.
Virginia is a “one-party consent” state. This means you can record the IME.
I do not, however, recommend doing so secretly.
At the beginning of the examination take out the tape or video recorder (or your smart phone) and ask the doctor if you can tape record the examination. Many IME doctors may not like it, but you have the right to do so. And by telling the doctor about it upfront, there is a better likelihood that the doctor will do a complete and thorough examination and reach fair conclusions, rather than a short examination that leads to preconceived unfavorable opinions.
After the Defense Medical Examination, I recommend going to your vehicle and taking 30 minutes to write down everything you remember about the examination.
This includes:
Your attorney will use this information to counter the Independent Medical Examination report at trial or during settlement negotiations, and to show any inconsistencies in the report.
My tips on how to handle an Independent Medical Examination in workers compensation cases also apply to those of you who bring a products liability or personal injury lawsuit in state or federal court based on another person or company’s negligence.
IMEs in Personal Injury Actions in Federal Court
Rule 35 of the Federal Rules of Civil Procedure is titled Physical and Mental Examinations. It states:
… The court where the action is pending may order a party whose mental or physical condition – including blood group – is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner …
The order to compel a plaintiff to attend a Defense Medical Examination:
(A) may be made only on motion for good cause and on notice to all parties and the person to be examined; and
(B) must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.
In most, if not all, personal injury and auto accident cases there is no dispute that the plaintiff’s physical and mental condition are in dispute. Usually the parties will negotiate the specifics of the Defense Medical Examination, including the time, place (usually the jurisdiction where litigation is pending), length, doctor, and who can attend. Then they will enter into a written stipulation confirming their agreement.
After the Defense Medical Examination takes place, the defendant in your injury lawsuit must send you copies of the written report. The report must set out in detail the examiner’s findings, including diagnoses, conclusions, and the results of any tests. Failure to do so may result in the court excluding the examiner’s testimony at trial.
IMEs in Personal Injury Actions in State Court in Virginia (Circuit Court)
In Virginia a trial judge has the power to require you to submit to an examination by a physician. This power is found in Rule 4:10 of the Rules of the Supreme Court of Virginia, titled Physical and Mental Examination of Persons.
Rule 4:10 states, in part:
(a) Order for Examination. When the mental or physical condition (including blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending, upon motion of an adverse party, may order the party to submit to a physical or mental examination by one or more health care providers … employed by the moving party … The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties, shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made, and shall fix the time for filing the report and furnishing the copies.
In Virginia the insurance company must choose a physician who is resident in or practices in Virginia to conduct the Independent Medical Examination. If not, the insurance company must have a good reason for using an out-of-state examiner and must get the court’s approval.
After the Independent Medical Examination is completed, the insurance company must file a copy of the examiner’s written report with the court and send a copy to you. This written report may be read into evidence at trial if you decide to offer it. The only reason you would offer the report is if it is supportive, which is uncommon.
Some insurance companies will ask you to attend a Defense Medical Examination before filing a claim or lawsuit, with the promise that you will receive a fair settlement offer if the examination supports the injuries and disabilities you allege.
Do not agree to this request.
First, you have no obligation to attend an IME unless you have filed a claim or civil action.
Second, I have never seen an insurance company make a fair settlement offer after a pre-litigation IME, because the IME is rarely favorable.
Finding out that the IME doctor does not believe you are as injured as you allege, or that you are capable of returning to work when you continue to experience symptoms and restrictions, can be devastating. But it is part of litigation, unfortunately.
As an attorney who has reviewed hundreds, if not thousands, of IME reports, nothing surprises me. I rarely read an IME report that finds my client credible or as injured as alleged or described by the treating physician. But getting upset won’t help. Instead, you have to take action to continue to put yourself in the best position possible to get the benefits and monetary damages you deserve.
In addition to helping you prepare for the IME to get the best outcome possible, an attorney can help you deal with an unfavorable Independent Medical Examination report by:
These are just some of the ways to fight back against an unhelpful workers comp IME doctor.
If you have more questions, or are looking for help with your workers comp case, call me for a free consult: 804-251-1620 or 757-810-5614. I look forward to helping you get all the medical treatment and compensation you deserve.