April 21, 2014 07:45:49
Posted By John Reilly
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CIRCUMFRANCE DIFFERENTIAL - No, this is not a mathematics
exercise. When someone is complaining that they have great pain
in an "extremity" (arms being upper extremities and legs being
lower extremities), the IME doctor will often measure places on
both the allegedly affected leg or arm and the corresponding leg
or arm that is not affected by the condition or injury.
The theory is that if a person is in pain or has lost partial use
of a limb, his or her muscles will "atrophy" (gradually decrease
in size) due to lack of use. If there is a perceptible
difference (affected limb's muscles smaller than "normal" limb),
this is felt to be having an issue (pain or disability) with that
arm or leg. If there is no perceptible difference, the IME
doctor will often us this fact to try to demonstrate that there
is no evidence of a real problem - especially if the claim is
that the problem is long-standing or chronic in nature.
Of course, this method may not take into account sedentary
lifestyles in which muscle mass is not well developed in both
limbs in the first place. It may also not take into account that
a person may curtail, lower activity levels, cease or stop most
activity in an unharmed limb for a variety of reasons (fear of
hurting that limb too, getting plenty of help and support from
others, etc.). Bottom line here is to be aware of this test and
theory, be aware that the IME doctor is not measuring you to help
you get clothes that fit better, that the "test" is somewhat
subjective and unscientific, and that in all events there must be
a valid basis for comparison. John - jreilly@lawyers-online.us
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April 17, 2014 10:49:09
Posted By John Reilly
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THE TERM "INDEPENDENT" IS INAPPROPRIATE IN DESCRIBING MANY EXAMINATIONS OF THIS TYPE
When a doctor performs an examination on behalf of an employer, an insurance company or any other private party paying for the doctor's time, use of the term "independent" is totally inappropriate. While there are some situations in which an examination is much more truly "independent" (such as when done for the Social Security Administration), the other party or insurer-paid examinations should be called an "insurance medical examination" or an "empoyer" examination. To do otherwise is unfair and deceptive if a the IME doctor and/or his results are brought before a jury.
Many of the IME doctors now provide forms of "Information and Instructions" about their exams. As with most "fine print", injured claimants and lawyer clients often fail to read the "fine print" and just sign these thinking that it's something they must sign. Some of the forms include authorizations to obtain other information and even consent to the doctor taking photographs to document findings. These things may or may not be appropriate, depending on the situation. The best practice is for you and your lawyer to obtain copies of the documents for review prior to the examination so that any objectionable requests or items in the form can be addressed and rectified.
The bottom line is that this is another important aspect of the IME process and should not be taken for granted. John
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April 15, 2014 08:03:25
Posted By John Reilly
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STRAIGHT LEG RAISING TESTS - This is a popular and important test
for persons who complain of pain running or radiating into one or
both of their legs. In the absence of clear diagnostic evidence,
some claimants (with "bulging" discs for example) may be
suspected of exaggerating or "faking" pain and limitation in
motion, increasing the perceived need to perform this time-
honored part of the IME testing.
We have been advised by many IME physicians that they begin this
test in a way that those who exaggerate problems will not be on
their guard - sitting on the edge of the examination table. Their
view is that the "fakers" voice no problems when the lower part
of their legs are raised (from the knee down) while seated yet
will complain of pain when the same leg is raised while lying on
their back on the table. The doctors indicate that when a real
problem exists it will show or exhibit itself during BOTH of
these tests. When the complaints only occur while lying down,
this is often viewed as an indicator of "faking" or outright
fraud. John
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April 12, 2014 08:02:03
Posted By John Reilly
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QUESTIONING BY DOCTOR AND STAFF
The IME doctor is not someone intending to help or treat an
claimant. The information that the doctor and his or her staff
obtain is intended to assess the condition of the claimant - and
also potentially gather "leads" for further follow up. Generally
speaking, I have found that the more "chatty" the doctor the more
they are trying to delve into topics that may not be proper
subjects of the examination. It is best to discuss this with your
legal advisor before the IME - and do not be afraid to ask for
privacy and call your advisor if you have concerns about the
questioning.
Remember that the IME doctor and his staff have likely already
received many if not all of your medical records. Sometimes they
will pretend not to have any knowledge about the claims and your
history. Doctors (having their own file on a claimant) have
sometimes asked staff assistants in front of claimants whether
they (the staff or assistant) have any records. Since the doctor
has the records, the staff or assistant can truthfully answer
that they do not have any records. Hearing this, a claimant is
sometimes encouraged to exaggerate or leave out important facts
about their condition or treatment. That is a mistake and calls
the claimant's truthfulness into question. Again, it is better
to have reviewed this entire procedure with your legal advisor
before the IME takes place. John
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April 11, 2014 07:53:44
Posted By John Reilly
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In certain personal injury, disability, workers' compensation and
other type claims, the defense or the insurance company will
request that claimants submit to so-called "independent" medical
examinations or "IMEs". Many of these are performed by health
care professionals who try to do this in a professional manner
and give their honest opinions. Unfortunately, some seem to have
developed a significant stream of income for performing this type
of service - and the defense seems to frequently use them since
they invariably question or rebut the cause, nature or effect of
the claimant's condition or injuries.
Today's topic is PREPARATION for the IME. As a general overview,
a claimant must keep in mind that the IME is taking place because
the defense has questions or suspicions about your condition.
Before going you should talk to your legal advisor (if you have
one) and there are numerous tips they can give you as well as
several videos that have been produced over the years to
demonstrate a typical IME and how the process works.
You should have someone accompany you to the doctor's office and
have them take notes about the time you arrive, the time you
actually see the doctor, how long you are with the doctor, and
when you leave. You should only sign documents if your legal
advisor indicates that it is OK to do so.
When going to a doctor who invariably finds claimants to be
exaggerating their conditions, it can make sense to schedule a
visit with your own doctor on the same day. There are sometimes
incredibly interesting differences in reported physical findings
(such as range of motion, gait, etc.)when different doctors
examine clients on the same day and this can call the IME
findings into serious question.
It is not a good idea to try to secretly record the visit with an
IME doctor. First, it is not legal in many states. Secondly,
even in "one party consent" states, quality recordings are
difficult to make when partially undressed and, finally, under
good cross examination a claimant making the recording can be
challenged and legally attacked in a variety of unpleasant ways.
Although many judges and courts frown on it, sometimes we have
obtained court permission to videotape the examination and have
had no difficulty with admitting the video at hearing or trial
since prior permission was obtained.
More tactics and tips will follow. John
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