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

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

 

 

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

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

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