Workers Compensation Newsletter January 2015
THE INDEPENDENT MEDICAL EXAMINATION
The Illinois Workers Compensation Act provides for the use of Independent Medical Examinations.
While such examinations are usually requested by the respondent, I am seeing more petitioner
attorneys requesting IMEs. The Independent Medical Evaluation is an integral part of the Workers
Compensation system. To the physician IMEs represent a significant income stream in the current era of
decreased revenue. The competition for IME ‘business’ has become intense. Many physicians want to do
Independent Medical Evaluations, but the the usefulness of the examination depends on its quality. The
following principles are guidelines to what should be expected of every IME.
OBJECTIVITY: The physician performing the evaluation must demonstrate objectivity. I have been told
multiple times by both respondent and petitioner attorneys, “I just want the truth.” I believe that the
overwhelming number of them do indeed want that. Respondent attorneys do not want to incur costly
legal expenses if the case should not be contested. Petitioner attorneys do not want to pursue a case if
it is not compensable. However, physicians and physician groups seem to think that a good way to
attract IME volume is by holding themselves out to be sympathetic to one party or the other. That may
be good business, but it is not good for the system. Honesty is a commodity that once lost is very
difficult if not impossible to regain. On more than one occasion the Illinois Workers Compensation
Commission has based its decisions, in large part, on the IME physician’s credibility. The opinions of a
physician who has a track record of always siding with one party have been dismissed, virtually
guaranteeing a victory for the other side. These decisions have resulted in ‘drying up’ of the physician’s
IME business which was cultivated but not too subtle assurances that the physician would consistently
be in one party’s ‘corner’. Some of these physicians have actually tried to retain IME revenue by ‘going
to the other side’, but that tactic will eventually fail as well. I have been told that at deposition some
physicians ask, “Before we begin, what side am I on?” The system requires that the independent
evaluator side with impartiality.
The evaluator loses credibility if she/her tries to solicit the subject as a patient. Comments like, “You
can’t be hurting in that spot if you supposedly have this problem” are decidedly unhelpful to the party
requesting the IME. Once reported to the opposing party, the evaluation becomes much easier to
challenge.
EXPERTISE: It may seem intuitively obvious that the physician doing the IME have the requisite training
in the area at issue. However, there are no regulations regarding this problem. Moreover, as IMEs have
become more attractive as a revenue source, more physicians/physician groups are trying to ‘stretch’
their reported expertise. For example it is now not uncommon to see a physician whose stationary lists
him/her as a hand surgeon perform shoulder IMEs. A significant amount of skepticism should be
generated in evaluating such an evaluator.
The medical community has seen the emergence of primary care physicians handling orthopaedic
injuries. These physicians may have specialty training in areas such as sports or occupational medicine.
These primary care physicians are now performing IMEs. However they have no training in surgery and
have limited if any knowledge base upon which to judge issues such as: whether the mechanism of
injury would be consistent with pathology; whether a surgical procedure could help a patient; how to
judge the outcome of a surgical procedure; or the length of rehabilitation required after a surgical
procedure.
A final problem revolves around an evaluator whose knowledge base is not up to date. A number of
physicians do not read journals consistently. They may attend enough meetings to meet continuing
medical education requirements, but are by no means versed in the latest technology. Yet they are
oftentimes asked to opine on such procedures. The quality of the evaluation can suffer as a result.
RECORD REVIEW: The evaluator should request all available medical records and imaging studies before
the date of the IME. Ideally these should be reviewed prior to the IME so that the physician is
knowledgeable about the case and able to focus on the key issues involved. The evaluator should
document all of the records that were reviewed. The evaluation needs to include a comment as to
whether the actual imaging studies were reviewed personally or only the report. Finally, the evaluation
should comment on any other records that would be helpful and whether those records might or could
alter the opinions given in the evaluation.
HISTORY: The examiner must obtain a thorough history from the subject. This should be done in the
language in which the subject is comfortable. For example, I speak fluent Spanish and have found that
many subjects are much more comfortable in that language even though they also speak English. The
history should include all other medical conditions since they may have an impact on the condition at
issue ie diabetes and frozen shoulder.
In listening to the history, it is reasonable to point out that the records do not corroborate the history
given by the subject. It is also important to listen to the subject’s response to that statement. I have
had subjects state that other records exist when in fact they do, and I have also had subjects completely
fabricate a history. It is important to compare the records to the subject’s history in evaluating the
subject’s credibility.
THOROUGH AND OBJECTIVE PHYSICAL EXAMINATION. Unfortunately many physical examinations
performed as part of the IME do not meet the standards that should reasonably be expected. A
complete examination of the involved body part requires actual visual inspection. For example a subject
with a shoulder condition must take his shirt off or, if female, be in a tank top or examining gown. The
shoulder needs to be evaluated from both front and back. The involved shoulder needs to be compared
to the other side (see below). Points of tenderness must be recorded and later compared to see if they
match an anatomic pattern. Because there is a cross over in symptoms the neck needs to be examined.
( I have seen patients who actually have had neck surgery when the problem was in the shoulder.)
Electronic medical records oftentimes prompt the physician to record neurovascular and skin status. The
physician must resist the temptation to click ‘normal’ and do the actual examination.
I teach my residents and fellows that an examination should not contain adjectives. One examiner’s ‘full
range of motion’ may not in fact be so. Statements such as ‘good’ or ‘equal’ strength are at best
debatable. However documentation of range of motion with a goniometer (a device that measures
angles) and compared to the other side eliminates any doubt. Most physicians use manual muscle
testing on a 0-5 scale to evaluate strength. However, there is a significant amount of subjectivity in using
that scale. I prefer to use a hand held dynamometer (a device that records strength in pounds or
kilograms). Both sides are tested. In order to objectify the test even further, three trials in each
direction are performed and the best of the three trials is recorded. All of the relevant provocative
tests (Speeds, Yergason, Whipple, etc) need to be recorded as positive/negative and compared to the
other side. If a subject is unable to perform the test due to guarding, there must be documentation. In
a similar fashion the presence of cogwheeling (actively resisting the examiner in order to prevent an
examination from being performed) must be recorded. The quality of the documentation directly
impacts the usefulness of the examination.
OPINIONS: All of the questions posed by the interested party should be addressed in this section of the
report. If a particular question needs clarification the interested party should be asked before the
evaluation is finalized. If additional records need to be reviewed before finalizing an opinion, a
statement to the effect should be contained in the document. The evaluator must understand the
applicable causation standard. The laws in each state differ. Illinois’ standard is whether the work
episode was a cause of the need for treatment. All of the opinions must be based on the evidence
gathered by the evaluator: medical records, history, examination, imaging studies. Statements such as
‘the symptoms exceed the findings’ need to be supported by an accurate comparison of the history with
the physical findings: multiple points of tenderness not correlated with possible pathology, cogwheeling,
etc. Comments as to appropriateness of care also need to be based on the records. For example the
evaluator must look at the therapy notes in order to determine if the number of therapy visits is
justified. One must also critically evaluate who performed the therapy and her/his credentials to do so.
The evaluator must have the requisite expertise to opine whether what, if any, further treatment would
be helpful. Determination of maximal medical improvement needs to be based on a sound knowledge
of the literature regarding this issue.
The functioning of the workers compensation system is directly influenced by the
quality of the Independent Medical Evaluation. Lack of objectivity and
incompleteness can prevent or delay correct treatment. Alternatively unnecessary
prolonged litigation and disability payments can result. A good IME makes the
system better by expediting correct treatment and/or eliminating wasted costs.
The choice of the evaluator is critical.