Do I Have to See Their Doctor?

Have you heard the term “independent medical exam,” or IME for short? If you have, you likely heard it in the context of a workers’ compensation case. There are many misconceptions about these exams, how they work, and what your rights and duties are if you are an injured workers’ compensation claimant.

Calling It Independent Doesn’t Make It So

Independent medical examinations, commonly referred to as IMEs, are actually not called that at all. Well, sure, people use the term all the time, but if you read the Illinois Workers’ Compensation Act, Section 12, you will find no mention of the term. The actual language is “An employee entitled to receive disability payments (TTD, or Temporary Total Disability), shall be required, if requested by the employer, to submit himself, at the expense of the employer, for examination by a duly qualified medical practitioner or surgeon selected by the employer.” (820 ILCS 305/12). That section goes on to say that “If the employee refuses to submit himself to examination or unnecessarily obstructs the same, his right to compensation payments shall be temporarily suspended until such examination shall have taken place…”

A few takeaways:

• There is nothing “independent” about a doctor paid “at the expense of the employer.”
• Failure to show up means they can cut off your benefits.
• The exam can be inconvenient to get to—it doesn’t even have to be in the State of Illinois, and there are cases allowing exams hundreds of miles away (they are required to pay for mileage).

Why a Section 12 Exam?

Because they can.

Because they may not like the diagnosis or treatment rendered by the doctor you chose.

The employer—and we’re really talking about the employer’s workers’ compensation insurance carrier—has the right to have a second look at your medical treatment.

A common example might look like this:

You are a nurse who injures her shoulder helping a patient out of bed. Your rotator cuff is torn and you undergo several months of physical therapy, but it doesn’t get significantly better.

Your physician recommends surgery to repair the tear.

The insurer does not want to pay for the surgery, the attendant rehab, the long time off work, and the possibility of you never being able to return to work without restrictions.

Thus, the carrier/employer sends you for a Section 12 examination.

At first glance, that seems fair, right?

However, the reality is that the insurer sends thousands, if not tens of thousands, of claimants just in Illinois for Section 12 exams annually. There are a limited number of doctors who perform these exams in various areas of expertise. So, if the carrier needs an orthopedic doctor with expertise in shoulders in the Chicagoland area willing to perform an exam, there are perhaps several dozen doctors at most. Each Section 12 exam physician charges for the service of reviewing the patient’s medical records, examining the person, and writing a report. While these costs are not disclosed, it is safe to assume that each exam costs several thousand dollars.

Let’s think about that for a moment. The insurance company pays a doctor, say $2,500, to conduct an exam. The doctor likes to have that regular money coming in. Is it possible that that doctor bends his or her findings a bit in favor of the insurance carrier/employer if it means he or she will potentially be assigned many more of these exams in the future?

I am not saying every single doctor who performs a Section 12 examination is in cahoots with the insurance company. Nor am I claiming that every single Section 12 exam is invalid or that the doctors who perform them are biased.

However, after well over three decades of observing this process firsthand, I have seen enough to have concerns. I once attended such an exam with my client and watched him grimace and scream in pain as he was asked to attempt to touch his toes. He barely touched his knees. The report produced by this doctor stated “able to touch toes without pain or difficulty.” There are enough of the “frequent flyers” who are, for all intents and purposes, “in the pocket of the insurer.”

These exams are not independent at all; they are exams performed by a doctor paid for and chosen by the employer/insurer.

If You Know It is Biased, Why Do You Have to Submit?

That’s the way the law is written. It gives the employer an opportunity to have a doctor not chosen by the petitioner (injured employee) examine that claimant. Besides, if you are a claimant who is not working and receiving both medical benefits and disability (TTD) benefits, how are you going to survive and pay the bills without those benefits being paid?

The insurer can use it as a sword to “starve” the claimant into either a reduced settlement or to pressure them to forgo medical treatment. Again, this is not the motivation or the result most of the time, but I have definitely seen it happen often enough. It is part of their toolkit. Remember, the insurer does not “see” a human being; rather, it sees money it is spending on medical and TTD, and a length of time that employee is unable to work.

I am not painting everyone who works for a workers’ compensation insurer as a cold, heartless, evil person. But the mentality is to save the company money. Bonuses are paid based upon that. It is impossible for some of those who review claims not to start viewing most claimants as malingerers. Fortunately, most of the people I deal with are compassionate and attempt to resolve things in a reasonable manner for my clients.

The IME can be used for several purposes.

One potential purpose is to deny the claimant medical or disability benefits. While this nefarious purpose is rare, sometimes the insurer claims the petitioner is malingering or that her doctor is recommending treatment that is not medically necessary. Many insurers develop timelines of recovery for a variety of injuries and medical conditions. Obviously, many different factors affect recovery, but if a claimant does not fit into the pigeonhole deemed appropriate, an exam notice may be sent out.

Another purpose is simply to “break a tie.” Sometimes, the insurance representative—the claims adjuster—wants a fair evaluation of the claimant’s medical condition. There are many occasions where the exam produces a fair middle ground resolution. Often, this is done at the behest of the insurer in hopes of punching holes in the claimant’s claims. A common example would be the nurse we mentioned earlier with a rotator cuff injury. Perhaps she actually does need surgery, but maybe not as extensive as recommended by her doctor. If the exam’s result is reasonable, it may actually save the carrier/employer time and money while getting the petitioner the treatment she needs.

Finally, the purpose of a Section 12 exam may be to set up for a “battle of the doctors” at trial. The petitioner’s treating doctor says she needs a shoulder replacement. The Section 12 doctor says she needs either more physical therapy or maybe a minor arthroscopic surgery. All the evidence is submitted, and the arbitrator hearing the case gives weight he or she deems reasonable to both and renders a decision. While not every arbitrator gives Section 12 doctors the same weight as the treating doctor, many do, and the insurers are willing to gamble on that.

Takeaways

• Section 12 examinations are not remotely independent and claimants are required to attend or risk having their benefits cut off.
• The pool of doctors performing these exams is limited. Thus, the same “frequent flyers” tend to appear regularly. Producing reports generally favorable to the employer often results in return business of more assignments to perform Section 12 exams.
• Section 12 exams may actually help hone issues and lead to settlement, while other times they are used as fodder for trial and a “battle of the doctors.”

Contact Chicago Personal Injury and Workers’ Compensation Lawyer Stephen Hoffman

As in all cases involving a work injury, car crash, or slip and fall, immediately get medical treatment, report the crash to police and your own insurance company, and contact a lawyer with expertise in your type of case, such as bicycle accidents or pedestrians hit by cars.

If you've been in an accident and have questions, contact Chicago personal injury attorney Stephen L. Hoffman for a free consultation at (773) 944-9737. Stephen has over 30 years of legal experience and has collected millions of dollars for his clients. He is listed as a SuperLawyer, has a 10.0 rating on Avvo, and is BBB A+ accredited. He is also an Executive Level Member of the Lincoln Square Ravenswood Chamber of Commerce.

Stephen handles personal injury claims on a contingency fee basis, which means you don’t pay anything up front and he only gets paid if you do. Don’t wait another day; contact Stephen now.