Independent Medical Examinations

Independent Medical Examinations

The Law

LHWCA  907

(e) Physical examination; medical questions; report of physical impairment;  review or reexamination; costs.

In the event that medical questions are raised  in any case, the Secretary shall have the power to cause the employee to be  examined by a physician employed or selected by the Secretary and to obtain from  such physician a report containing his estimate of the employee’s physical  impairment and such other information as may be appropriate.

Any party who is  dissatisfied with such report may request a review or reexamination of the  employee by one or more different physicians employed or selected by the  Secretary.

The Secretary shall order such review or reexamination unless he  finds that it is clearly unwarranted.

Such review or reexamination shall be  completed within two weeks from the date ordered unless the Secretary finds that  because of extraordinary circumstances a longer period is required.

The  Secretary shall have the power in his discretion to charge the cost of  examination or review under this subsection to the employer, if he is a  self-insurer, or to the insurance company which is carrying the risk, in  appropriate cases, or to the special fund in section 44 [33 USC § 944].

(f) Place of examination; exclusion of physicians other than examining  physician of Secretary; good cause for conclusions of other physicians  respecting impairment; examination by employer’s physician; suspension of  proceedings and compensation for refusal of examination.

An employee shall  submit to a physical examination under subsection (e) at such place as the  Secretary may require.

The place, or places, shall be designated by the  Secretary and shall be reasonably convenient for the employee.

No physician  selected by the employer, carrier, or employee shall be present at or  participate in any manner in such examination, nor shall conclusions of such  physicians as to the nature or extent of impairment or the cause of impairment  be available to the examining physician unless otherwise ordered, for good  cause, by the Secretary.

Such employer or carrier shall, upon request, be  entitled to have the employee examined immediately thereafter and upon the same  premises by a qualified physician or physicians in the presence of such  physician as the employee may select, if any.

Proceedings shall be suspended and  no compensation shall be payable for any period during which the employee may  refuse to submit to examination.

i) Physicians’ ineligibility for subsection (e) physical examinations and  reviews because of workmen’s compensation claim employment or fee acceptance or  participation. Unless the parties to the claim agree, the Secretary shall not  employ or select any physician for the purpose of making examinations or reviews  under subsection (e) of this section who, during such employment, or during the  period of two years prior to such employment, has been employed by, or accepted  or participated in any fee relating to a workmen’s compensation claim from any  insurance carrier or any self-insurer.

_________________________________________________________________________________________

20 CFR 702 Subpart D

The Regulations

20 CFR 702.408 – Evaluation of medical questions;  impartial specialists.

  • Section Number: 702.408
  • Section Name: Evaluation of medical questions; impartial specialists.

In any case in which medical questions arise with respect to the  appropriate diagnosis, extent, effect of, appropriate treatment, and the  duration of any such care or treatment, for an injury covered by the  Act, the Director, OWCP, through the district directors having  jurisdiction, shall have the power to evaluate such questions by  appointing one or more especially qualified physicians to examine the  employee, or in the case of death to make such inquiry as may be  appropriate to the facts and circumstances of the case. The physician or  physicians, including appropriate consultants, should report their  findings with respect to the questions raised as expeditiously as  possible. Upon receipt of such report, action appropriate therewith

20 CFR 702.409 – Evaluation of medical questions; results  disputed.

  • Section Number: 702.409
  • Section Name: Evaluation of medical questions; results disputed.

Any party who is dissatisfied with such report may request a review  or reexamination of the employee by one or more different physicians  employed by or selected by the Director, and such review or  reexamination shall be granted unless it is found that it is clearly  unwarranted. Such review shall be completed within 2 weeks from the date  ordered unless it is impossible to complete the review and render a  report thereon within such time period. Upon receipt of the report of  this additional review and reexamination, such action as may be  appropriate shall forthwith be taken. 

20 CFR 702.410 – Duties of employees with respect to  special examinations.

(a) For any special examination required of an employee by  Secs. 702.408 and 702.409, the employee shall submit to such examination  at such place as is designated in the order to report, but the place so  selected shall be reasonably convenient for the employee.     (b) Where an employee fails to submit to an examination required by Sec. Sec. 702.408 and 702.409, the district director or administrative  law judge may order that no compensation otherwise payable shall be paid  for any period during which the employee refuses to submit to such  examination unless circumstances justified the refusal.     (c) Where an employee unreasonably refuses to submit to medical or  surgical treatment, or to an examination by a physician selected by the  employer, the district director or administrative law judge may by order  suspend the payment of further compensation during such time as the  refusal continues. Except that refusal to submit to medical treatment  because of adherence to the tenets of a recognized church or religious  denomination as described in Sec. 702.401(b) shall not cause the  suspension of compensation. [42 FR 45303, Sept. 9, 1977, as amended at 50 FR 402, Jan. 3, 1985; 51  FR 4286, Feb. 3, 1986]

20 CFR 702.411 – Special examinations; nature of  impartiality of specialists.

  • Section Number: 702.411
  • Section Name: Special examinations; nature of impartiality of  specialists.

(a) The special examinations required by Sec. 702.408 shall be  accomplished in a manner designed to preclude prejudgment by the  impartial examiner. No physician previously connected with the case  shall be present, nor may any other physician selected by the employer,  carrier, or employee be present. The impartial examiner may be made  aware, by any party or by the OWCP, of the opinions, reports, or  conclusions of any prior examining physician with respect to the nature  and extent of the impairment, its cause, or its effect upon the wage- earning capacity of the injured employee, if the district director  determines that, for good cause, such opinions, reports, or conclusions  shall be made available. Upon request, any party shall be given a copy  of all materials made available to the impartial examiner.     (b) The impartiality of the specialists shall not be considered to  have been compromised if the district director deems it advisable to,  and does, apprise the specialist by memorandum of those undisputed facts  pertaining to the nature of the employee’s employment, of the nature of  the injury, of the post-injury employment activity, if any, and of any  other facts which are not disputed and are deemed pertinent to the type  of injury and/or the type of examination being conducted.     (c) No physician selected to perform impartial examinations shall  be, or shall have been for a period of 2 years prior to the examination,  an employee of an insurance carrier or self-insured employer, or who has  accepted or participated in any fee from an insurance carrier or self- insured employer, unless the parties in interest agree thereto. [38 FR 26861, Sept. 26, 1973, as amended at 42 FR 45303, Sept. 9, 1977] 

_________________________________________________________________________________

Federal Rules of Civil Procedure 35 (b

You won’t be told about these but they are used to make your DME Demands

These are also YOUR Rights

(a) Order for an  Examination.

(1) In General.

The court where the action is pending may order a party  whose mental or physical condition — including blood group — is in controversy  to submit to a physical or mental examination by a suitably licensed or  certified examiner. The court has the same authority to order a party to produce  for examination a person who is in its custody or under its legal control.

(2) Motion and Notice; Contents of the Order.

The order:

(A) may be made only on motion for good cause and on notice  to all parties and the person to be examined; and

(B) must specify the time, place, manner, conditions, and  scope of the examination, as well as the person or persons who will perform  it.

(b) Examiner’s Report.

(1) Request by the Party or Person Examined.

The party who moved for the examination must, on request,  deliver to the requester a copy of the examiner’s report, together with like  reports of all earlier examinations of the same condition. The request may be  made by the party against whom the examination order was issued or by the person  examined.

(2) Contents.

The examiner’s report must be in writing and must set out  in detail the examiner’s findings, including diagnoses, conclusions, and the  results of any tests.

(3) Request by the Moving Party.

After delivering the reports, the party who moved for the  examination may request — and is entitled to receive — from the party against  whom the examination order was issued like reports of all earlier or later  examinations of the same condition. But those reports need not be delivered by  the party with custody or control of the person examined if the party shows that  it could not obtain them.

(4) Waiver of Privilege.

By requesting and obtaining the examiner’s report, or by  deposing the examiner, the party examined waives any privilege it may have — in  that action or any other action involving the same controversy — concerning  testimony about all examinations of the same condition.

(5) Failure to Deliver a Report.

The court on motion may order — on just terms — that a  party deliver the report of an examination. If the report is not provided, the  court may exclude the examiner’s testimony at trial.

(6) Scope.

This subdivision (b) applies also to an examination made by  the parties’ agreement, unless the agreement states otherwise. This subdivision  does not preclude obtaining an examiner’s report or deposing an examiner under  other rules.

__________________________________________________________________________________

From the Longshore Manual

. Evaluation When There is Conflicting Medical Evidence and/or  Disagreement. Whenever the CE determines that a medical evaluation is needed  to resolve disputes as to the degree of permanent impairment, the CE should  immediately arrange for an evaluation. Selection of a physician and scheduling  of the evaluation can be handled by phone, letter, or at a conference by any of  the parties in interest. Where section 8(f) relief is an issue, all arrangements  must be made by the DO.

8. Selection of Physician to Conduct Evaluation. The selection of a  physician to conduct the evaluation of impairment can be made in several ways.  While any of these methods may be used, it is generally preferable to have the  parties participate in the selection of the physician. Please refer to PM  5-200.10 for further guidance on the selection of impartial specialist.

a. Selection by CE. The CE can select a physician for an impartial  evaluation pursuant to section 7(e) or section 14(h) of the Act.

b. Selection by Parties. The CE can provide the names of three or more  Board-certified specialists in the needed specialty and have the parties select  a physician from those named.

c. Mutual Agreement of Parties. The parties can mutually agree on a  physician of the appropriate specialty. This method for choosing a physician  should not be used in cases where section 8(f) relief is an issue.

9. Selection of Physician by Claims Examiner.

a. Rotation System. Whenever the CE presents names of physicians for  selection by the parties, or selects a physician without the participation of  the parties, a rotation system of selection will be followed.

b. Suitability of Physician. There will be physicians who are unable  or unwilling to conduct evaluations. Other physicians may have become known as  being unduly biased in favor of either claimants or employers. Such physicians  should be omitted from the rotation system.

c. Section 7(i) Restriction. If the restrictions of section 7(i) and a  party’s unwillingness to waive them make the use of that provision impractical,  the CE then proceeds with the evaluation under the authority of section 14(h),  which is an alternative to section 7(e) for evaluating permanent impairment.

d. Examination Under Section 14(h). Examinations under section 14(h)  shall generally be arranged to preclude pre-judgment by the impartial  specialist. No physician previously connected with the case should be present,  nor may any other physician selected by either party be present.

e. Impartiality of Examinations. The examining physician should not  routinely be apprised of the opinions, reports, or conclusions of any prior  examining physician with regard to the nature and extent of the employee’s  impairment and its cause or effect on the employee’s wage-earning capacity. (See  20 C.F.R. section 702.411(a) and (b) and PM 5-200.10.)

10. Referral Arrangements.

a. Requirements for Physician’s Report. Once the impartial specialist  has been selected, either under section 7(e) or section 14(h), the CE will  contact the physician’s office, preferably by telephone, to determine if the  physician is willing to conduct such an evaluation. If so, the arrangements will  be formalized by use of a narrative letter which sets forth the essential  background data and requests that the report include all or as much of the  following information as may be appropriate:

(1) Date of examination.

(2) History given by employee.

(3) Detailed description of findings.

(4) Results of any x-ray or laboratory tests.

(5) Diagnosis.

(6) An estimate of the percentage of impairment remaining due to the injury  in accordance with the AMA Guides, where applicable.

(7) Date of maximum improvement, if reached.

(8) Prognosis.

(9) Advice as to the work limitations imposed by reason of injury-related  impairment with respect to lifting, bending, stooping, walking, reaching,  standing, etc.

(10) Recommendations for further medical treatment, if indicated.

(11) An indication whether the physician would be available to testify at a  formal hearing, either in person or by deposition.

b. Arrangements by Party in Interest. If there is mutual agreement by  the parties as to the examining physician, one of the parties may arrange the  examination, contact the physician’s office, make the referral, and request that  the medical report contain information which is outlined in subparagraph 10a. As  previously noted, this method should not be utilized in cases where section 8(f)  relief is an issue.

c. Referrals in Section 8(f) Cases. Where an impartial evaluation is  to be used to clarify medical issues in a case where section 8(f) is an issue,  the examination should be arranged by the DD. This is not to be done by the  private parties. The claimant should be examined by the impartial medical  specialist. The DD should frame the questions to be answered by the specialist  and the report of the specialist should be sent first to the DD. This procedure  should be followed so that the specialist’s evaluation will be impartial and not  simply reflect the views of the private parties.

11. Receipt of Medical Report of Evaluation. On receipt of the medical  report, the CE should make a copy of the report available to the parties, if  they have not already been furnished one. The CE will then review the report  carefully and, along with other factors necessary in evaluating disability,  determine the extent of disability, and make a recommendation for the  consideration of the parties.

12. Evaluation Disputed.

a. Request for Reexamination. A party who is dissatisfied with the  findings of the evaluating physician may request a review or reexamination of  the claimant. The CE should grant the request unless considered unwarranted.  When the request is granted, the physician should be chosen using the same  procedure as when the initial selection was made.

b. Conduct of Reexamination. The reexamination shall be completed  within two weeks from the date ordered, unless it is impossible to complete the  reexamination and render a report within such time period.

13. Determination of Disability. Following receipt of medical reports  of reexaminations or reviews, the CE should not usually authorize any further  evaluations, reexaminations, or reviews, but will carefully evaluate all the  medical evidence and non-medical factors necessary in evaluating disability,  determine the extent of disability, and make a recommendation for the  consideration of the parties.


8 Responses to “Independent Medical Examinations”

  1. July 3, 2010 at 12:00 pm [...] Independent Medical Examinations [...]

  2. anonymousonpurpose said

    July 3, 2010 at 1:27 pm Wow,

    These rules are so damn SPECIFIC.  Does the DOL and the IME “Dr.?” and the Defense break every single one of these “rules”, every single time?

    How can they get away with breaking the law?

    How can they treat people like animals going to the slaughter while they collect large sums of money…everyone involved EXCEPT the Claimant…who actually deserves it from YEARS of suffering?!

    These people flaunt the law and bend every rule in the book to their own selfish ends…

    I wish Karma would bite them all on the ass…

    Maybe some day Congress will act, but I am not holding my breath  :-(

    • defensebaseactcomp said

      July 3, 2010 at 1:38 pm It is time for all of the laws to be applied to all parties, not just the injured.

      Our own lawyers need to stand up for what is right.

      The ALJ’s may not follow the law, but you will have documentation of their complete disregard for the rights of the injured.

      Above all, the ALJ’s should respect and enforce the laws.

      • anonymousonpurpose said

        July 3, 2010 at 1:49 pm Happy Fourth of July!

        Independence day…

        Honor those who have fought and died for our freedoms…

        Too bad the DOL forgot that we were there too and deserve respect and fair treatment…

  3. brit guy said

    July 4, 2010 at 8:13 am Ok great post but I have a question if anyone can help I would appreciate it.

    Why do the insurers jump straight to part three without asking the claims examiner for an IME? If they go for a DME first is this binding?

    I had a DME with a surgeon of there choice he confirmed my injuries and gave his prognosis and his opinion on my medical condition and the ongoing problems I face.

    As this was not what the insurers wanted they have now gone back to the DOL and asked for an IME so they can challenge their own doctors findings.

    How the hell can this be lawful if it is then it is surely immoral they challenge the treating physicians report and prognosis and conclusions and appoint there own.

    I will point out that I fully agree with this to prevent fraudulent claims they have the right to a second opinion.

    However they choose the doctor they do not like that doctors findings prognosis opinions and conclusions so run to the DOL for another go.

    • defensebaseactcomp said

      July 4, 2010 at 8:54 am The injured are not allowed to Doctor Shop this way but it is clearly an option for the insurance company.

      If a true Independent Medical Examination were arranged by DoL according to the law they are still allowed to have another doctor of their own examine you immediately following, on the same premises.

      Who is to know what is binding?  The law is not binding.

      Nothing the DoL does or recommends is binding on the insurance company.

      The ALJ’s can say black is white if it suits them

      Plenty of orders signed by ALJ’s for medical are ignored.

Leave a Reply

Your email address will not be published. Required fields are marked *

Help

WordPress theme: Kippis 1.15