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Maximizing Defense IMEs in New Jersey Workers’ Compensation

By on August 16, 2019 in Workers' Comp with 0 Comments

An independent medical examination can be requested at any reasonable time and place in the state for a variety of reasons: there may be an issue of causation, ability to work, second opinion on surgery, need for further treatment, or assessment of permanent partial disability.  No matter what the purpose of the examination is, a well-reasoned IME is critical to the successful defense of workers’ compensation claims.

This blog focuses on the steps employers, carriers, third party administrators and lawyers should take as well as the mistakes to avoid in setting up IMEs.

Explain the nature of the claim to the IME physician.

Example:  Employee files an occupational claim petition alleging physical labor from 2000 to January 30, 2019 caused knee pathology. The employer denies the claim petition. An IME is arranged.  There is no explanation of the allegations of the claim to the IME physician. No letter is ever sent other than perhaps a check-off letter asking for guidance on “permanency” and “causation.” The injured worker tells the physician during the IME that on January 30, 2019 he felt pain in his left knee while walking at work. The employee has an MRI showing a tear. The doctor writes a report stating, “I find that the petitioner’s accident of January 30, 2019 caused his knee pathology and I recommend arthroscopic surgery.”

What went wrong? The claim was not for a specific accident!  January 30, 2019 was just the last day of exposure when the pain was noticed or became intolerable.  Occupational claim petitions are required to list a beginning and end date.  This claim asserted that 19 years of physical labor caused the knee pathology, not walking at work one day (which is not a true accident).  The doctor in this case did not know that the claim was denied, nor that this was truly an occupational claim and that the worker was never injured on any particular day. 

Send the IME physician key information in the case:

As a general rule, the IME physician wants to read the claim petition to understand the formal allegations, as well as the answer of the respondent. The doctor wants to see all treating records including prior records that may be relevant.  If there are answers to interrogatories, the doctor will want to see them as well because they often contain important information.  If there is a recent and subsequent injury, whether work or non-work related, the IME doctor will want that information.

If you have a specific doctor or type of specialty you need for an IME, don’t call an IME group and ask for the next available IME date without mentioning the particular physician or specialty.

IME companies have dozens of physicians that they schedule for IMEs. Some are surgeons; some are not.  If you want the earliest possible date, the company will find the physician whose calendar is open and assign you that doctor.  That may or may not be the doctor or specialty you wanted. Some physicians are very busy and booked out for three months; others have fewer assignments.  If you just want any orthopedic surgeon as soon as possible, but you do not want an occupational physician or physiatrist, then make that clear.

Make sure you have all the relevant records –including records of prior and subsequent accidents – before setting up the IME.

We all want cases to move quickly.  The average New Jersey claim petition lasts 28 months, so understandably clients are concerned about moving files.  However, rushing an IME is generally a mistake.  The absence of critical records often costs the employer a great deal of money.   The IME doctor can only give an opinion on the records he or she has.  There may be prior records that will show that the condition at issue was already in existence a few months before the accident, or that there has been a subsequent non-work car accident which has significantly aggravated the work-related condition.  The process of getting medical records takes time.  It takes time to prepare and send HIPAAs to opposing counsel, who then send them to their clients to be returned to respondent counsel.  Hospitals often delay sending records.  The hospital may reject the medical authorization and demand a subpoena.  But getting the prior or subsequent medical records may help clarify whether the claim is even work related, thereby avoiding costs of surgery and a large permanency award, with a potential reopener down the line.  This practitioner has seen cases where the doctor is missing almost all the treating records and writes a report basically drawing no conclusions pending receipt of medical records.  That creates a need for a second IME with double the cost.

When a case has high exposure or is likely to be tried, retain the most qualified expert.

Yes, it costs more to retain a board certified expert with a sub-specialty. But there are many high exposure cases in workers’ compensation, and the cost of not retaining a specialized expert is far greater than the extra $1,000 you may pay for a medical report from a highly qualified expert.  When you have a case involving lung cancer, you should retain a board certified oncologist or pulmonologist.  There are many internists who do such examinations but they may not have sat for or passed the board certification in pulmonology.  The outcome of a case often depends on the credibility of competing experts.  Judges always assess credibility of medical experts; they review their training and qualifications, and they consider the expertise of the IME physician when the experts flatly disagree on an issue in the case. This advice is also true in orthopedic cases.  If the case involves an issue of whether a fusion surgery should be performed, respondent is far better off retaining an expert who performs fusions, rather than an expert who does not perform such surgery.  

Find out early on if a translator is needed.

There are few things in workers’ compensation more frustrating than cancellation of an IME because the employee could not converse with the IME physician.  Contact must be made early on with petitioner’s attorney to inquire whether the injured worker will need a translator and if so, what specific language will be needed.

Try to make a reminder call or send an email to petitioner’s attorney a few days before the IME.

This is not always possible to do, since everyone is so busy, but it pays off.  Many times a letter is sent to a petitioner’s attorney two or three months before the exam date.  When an exam is set up months in advance, there is a higher likelihood of a missed appointment.  Communications fall apart or injured workers forget about the exam date.  If possible, a follow-up call or email to counsel a few days before the exam may eliminate a potential missed appointment.

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John H. Geaney

About the Author

About the Author:

John H. Geaney, an executive committee member and shareholder with Capehart Scatchard, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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