What is an IME (Independent Medical Evaluation)?
An Independent Medical Evaluation (better known as an “IME”) is an examination of an injured worker performed by a non-treating physician. There are a few reasons why an IME may be requested. Some examples include:
- Address conflicting medical opinions
- Reconcile uncertainties regarding medical treatment
- Determine the extent, nature, and causation of the work injuries and resulting disability
IMEs are nearly always scheduled by the workers’ compensation carrier/employer. While they can technically be requested by the Claimant and/or ordered by the Virginia Workers’ Compensation Commission, this is relatively rare.
The law behind an IME request: §65.2-607(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 for 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 provided for by this title, or any action at law brought to recover damages against any employer subject to the provisions of this title.
Breaking down §65.2-607(A) – What does it all mean?
“One examination per medical specialty.”
The workers’ compensation carrier is allowed one IME per specialty, per year, with limited exceptions. For example, let’s say the claimant has sustained a back injury. The carrier can send the injured worker for an IME with an orthopedic spine surgeon, an IME with a neurosurgeon, and an IME with a pain management physician in the same year. However, the carrier cannot send the injured worker to three IMEs with different orthopedic spine surgeons in the same year.
“No fact communicated to, or learned by any physician […] present at the [IME] shall be privileged”
This means that there is no doctor-patient privilege with an IME. Any information gathered or discussed is fair game to use against an injured worker (and likely will be in the IME report and any resultant litigation).
The law behind refusing to attend an IME: §65.2-607(B)
- 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.
Breaking down §65.2-607(B) – What happens if the injured worker refuses to go?
If the injured worker unjustifiably refuses to attend an IME, there can be repercussions. Benefits can (and likely will) be suspended until the refusal to attend the examination is “cured.” Meaning, if the injured worker cannot provide a legitimate and justified reason for missing an IME, wage loss benefits will be suspended by way of an employer filing an Employer’s Application for Hearing.
It is highly possible that the injured worker’s wage loss benefits will not be reinstated until the issue is litigated at a Workers’ Compensation Hearing. Unfortunately, these Hearings are often set several months out. Thus, the consequences of refusing to attend an IME without good cause can be swift and severe.
Are there exceptions to a required IME attendance?
There are a few factors that the Virginia Workers’ Compensation Commission will consider when it comes to IME attendance. If an injured worker believes IME attendance is objectionable, he or she must inform the Commission in writing and then wait for the Commission’s ruling. Should the Commission opine that IME attendance is required, the injured worker should attend. Below are some common objections:
- Notice – The injured worker should have reasonable notice of the IME appointment.
- Distance – The injured worker shouldn’t have to travel an unreasonable distance to an IME.
- Transportation – The injured worker may require transportation to an IME.
- Specialty – The IME physician should be in the correct specialty.
These circumstances are fact-specific and left to the discretion of the Deputy Commissioner. For example: An injured worker who lives in Richmond is being sent for an orthopedic spine IME. The Commission may find it unreasonable to require 90 miles of travel for this IME, given the numerous orthopedic spine surgeons located in closer proximity. However, an injured worker who lives in Galax is being sent for a neurosurgical IME. The Commission may find it is reasonable to require 90 miles of travel for this IME, given the limited physician options in the surrounding area.
The truth about “Independent” Medical Evaluations
These examinations allegedly aim to provide an impartial evaluation of an injured worker’s injuries, treatment recommendations, and potential for return to work. Unfortunately, IMEs operate under the guise of an unbiased medical opinion but are mostly used as a tool to significantly influence the trajectory of the case. Always proceed with caution.
Tips for injured workers before & during the IME
For injured workers, an IME can be stressful and intimidating. Here are some helpful tips for the IME:
- The IME notice will almost always request you obtain/bring diagnostic studies to the examination. That is not necessary. The workers’ compensation carrier/employer can easily obtain those studies for the IME physician if they choose to do so.
- The IME notice will request you arrive early to complete paperwork. Often, the IME physician wants the injured worker to sign paperwork that is not required. An attorney can distinguish what paperwork is necessary to complete.
- Review the IME notice, address/location in advance, as it is very important to be on time.
- Record the time that the IME begins and ends for your records.
- Be polite, respectful, and honest. It is important to answer the IME physician’s questions about your injuries and medical treatment, but do not volunteer additional information.
- Do not exaggerate.
- Do not criticize the carrier/employer.
- Do not discuss any other aspects of your workers’ compensation case with the IME physician (i.e.: settlement).
- Most importantly, remember that the IME doctor is not your friend nor your treating physician.
What to expect after an Independent Medical Examination
The IME physician will author a report and send it to the workers’ compensation carrier/employer. The injured worker should be prepared for unfavorable results. Many of the physicians who perform IMEs are “frequent fliers” for defendants. These doctors will often note findings of malingering, unrelated treatment, and regularly opine that injured workers are capable of returning to work immediately. IME reports often result in the injured workers’ benefits being suspended.
The good news is that the treating physician’s opinion is generally given more evidentiary weight (than the IME physician’s opinion) by the Virginia Workers’ Compensation Commission. An experienced workers’ compensation attorney will know how to critically assess the IME report, scrutinize the methodology, the examiner’s biases, and rebut the IME physician’s opinion via the treating physician.
Conclusion
The role of Independent Medical Examinations in Virginia workers’ compensation cases is involved and multifaceted. IMEs often lead to contentious litigation. As the findings of an IME can significantly impact the outcome of a case, it is vital to have a skilled Virginia Workers’ Compensation attorney that is familiar with the nuances and complexities of Virginia Workers’ Compensation laws. Call the attorneys at Allen & Allen so we can help you navigate this process and ensure you receive fair compensation. Call 866-388-1307 today.
