I regularly advise my clients that they should be cooperative, yet guarded in their interactions with posted panel or employer provided independent medical examinations. 1 Often the physicians used by employers and their insurance companies get most or all of their business from insurance companies and they frequently minimize your symptoms, hold off on ordering tests, and are quick to return seriously injured claimants back to full duty work.
Most of us are brought up to think that a doctor is a doctor and that there must be some law or rule which says that your doctor’s first priority is your health and well being. In the reality of the workers’ compensation system, many of the doctors you will encounter assume that all injured claimants are most likely exaggerating or even faking their symptoms and will base their treatment decisions on this often false assumption.
I recently attended a continuing legal education seminar where one of the speakers related a story about an insurance company IME that illustrates what many claimants face. In this case, a long time employee of a company injured his right knee when he fell off a loading dock. The employer/insurer picked up the claim and paid benefits. Medically, however, his condition did not improve with rest, physical therapy or injections.
The injured employee’s lawyer made use of his claimant’s IME to seek a second opinion and the IME doctor diagnosed a ligament tear that would require surgery and extensive rehabilitation.
The insurance company instructed their lawyer to fight the claim. The insurance company sent the claimant to its own IME and the report from this IME came back that the employee may have ligament damage but that this damage most likely arose from a prior knee injury.
The injured worker insisted to his lawyer that there was no prior knee injury – either at work or on his own time.
In preparation for a hearing the claimant’s attorney requested medical records from the employer/insurer and he requested medical records from the insurance company IME doctor. The insurance IME doctor’s records contained a letter from the insurance company lawyer to the doctor ordering the evaluation and stating that the insurance company had strong suspicion that the claimant had a pre-existing knee injury and that the insurance company was expecting medical records from other doctors confirming this.
At the same time the insurance company lawyer sent dozens of requests to internists and orthopedists who practiced within a 15 miles of where the claimant lived. None of these requests resulted in any evidence because there was none.
The claimant’s lawyer then deposed the insurance IME doctor and asked him why he concluded that the claimant had a pre-existing injury. The IME doctor responded that this information “was in the claimant’s medical history.”
The “history” he was referring to, of course, was the letter from the insurance company lawyer.
The claimant’s lawyer then asked the IME doctor if there was no history of a prior injury, would there be any reason to suspect that the current injury was not the source of the claimant’s pain and limitation of movement. In the absence of any history, the IME doctor opined, there would be no reason to believe that this work injury was not the source of the claimant’s problems.
After this deposition the insurance company backed down and approved the needed knee surgery.
While the claimant did get an appropriate remedy (after several stressful weeks), I hope you can see what went on here:
- the insurance company attorney used its special relationship with the IME doctor to subtly manipulate the record
- the insurance company doctor took at face value the uncorroborated suggestion by the defense lawyer that the claimant had pre-existing problems
- defense counsel sent out dozens of letters to local doctors fishing for damaging information about the claimant (so much for privacy considerations)
- the claimant’s attorney did a very good job by using the discovery process to get a copy of the insurance company’s file, and of the IME doctor’s file
- the insurance company file did not include correspondence from the defense counsel to the IME doctor or to the medical community
- the claimant’s attorney sensed that something was not there that should have been there and he found the “smoking gun”
- this claimant might very well have been denied necessary and appropriate knee surgery but for the good work of his lawyer
If you have questions about workers compensation law in Georgia, please call me at 770-351-0801 or email me by clicking on the link.