I have been in workers' compensation defense litigation almost four decades. One unusual trend that has developed in the last five years or so is the concept of IME providers that set up independent medical exams and take away such concerns from adjusters, nurse case managers and WC defense attorneys.

Eugene Keefe

I truly feel there are significant issues in what our WC defense team sees in this developing and controversial process. My main issue are the unquestioned facts: 

• No one gets an IME in a small WC claim. If you get an IME, the claim is moderate, serious or expensive.
• The cost of a defense IME continues to rise, as the costs of all U.S. medical products rise.
• The IME is without question the primary defense medical-legal expert in the claim.
• The decisions by a defense IME doctor are generally considered binding or incontrovertible for the defense in work comp litigation.
• Some IME providers, adjusters and nurse case managers use form letters without modification to provide interrogatories to an IME doctor, as if every claim can be reduced to a form.
• Some IME background letters bandy about the word “accident” in an IME background letter, which presumes a compensable event occurred. In my view, never use the word “accident” in an IME background letter unless the event/incident is unquestionably accepted and cannot be defended in any way.
• In my humble view, these ungainly steps are being taken with the idea the WC account is somehow saving money.
• Both I and my law partners have seen various claims where the non-lawyer IME background letter has “cooked the claim,” rendering it impossible to defend.

I am sure there is no other area of U.S. litigation, be it motor vehicle, construction, employment practices or anything where a non-lawyer would be allowed to select an expert and then draft a letter to the litigation expert to get answers that may change a claim’s reserves and values by thousands or perhaps millions of dollars.

With respect to the U.S. WC claims industry, it doesn’t make any sense to me. At a minimum, we are recommending to all clients and accounts that if you are going to spend the money on an IME, please let a veteran and well-trained defense lawyer complete the IME letter to ensure it is optimized for the claim.

Significant points to cover in any WC IME letter

The cover letter for an independent medical examination is crucial part of any WC claim:

• The cover letter sent to a medical expert may be subject to discovery or disclosure in a deposition.
• Try to ensure the letter is free from bias, written in a manner respectful of the injured worker and wholly factual.
• Be sure the letter is tailored to the specific claim and do not use generalized IME form letters. Ever.
• Letters to medical experts should be direct, clear and concise. Avoid adding unnecessary information and the drafter’s personal opinions.
• Make it clear as to the role of the IME in relation to the posture of the case and let the IME expert know what findings and opinions you are seeking.

Laying a proper foundation

In order for expert testimony to be accepted, the examining doctor needs to have a coinciding medical background. He also needs to demonstrate he has seen and examined the injured worker, and have a complete set of facts. Provide the doctor with full background of the case, and:

• Provide the expert with a complete set of medical records.
• List the records you are sending in the body of the record. 
• It is important to request that the doctor review and summarize what he thinks is medically significant in the records.

Issues of causation and need for ongoing medical care

Remember that workers’ compensation claims are viewed liberally in most states. Consider asking the IME expert:

• What is your diagnosis/prognosis?
• What is the contributing cause of any diagnosis?
• Further, what is the etiology of any diagnosis you make?
• In your opinion, did the claimed incident (please do NOT say accident), aggravate, accelerate or otherwise substantially contribute to the onset and progression of the injured worker’s condition?

Always ask about ongoing care and MMI

Maximum medical improvement is an important legal and claims threshold in workers’ compensation cases. In most U.S. jurisdictions, it can signal the end of a claimant’s temporary total disability (TTD) or temporary partial (TPD) benefits. It can also serve as a basis for moving toward settlement and evaluating permanency.

Here are some suggested questions to consider:

• In your opinion, has the worker reached MMI for all diagnosed conditions?
• If so, when did the employee reach MMI? 
• If not, when would you expect the employee to reach MMI for all diagnosed conditions?
• Do you agree or disagree with the treating physician’s opinion, outlining his opinion on MMI and/or the need for continuing medical care?
• Please confirm all opinions are stated within a reasonable degree of medical and surgical certainty within your field of expertise.

Eugene Keefe is a founding partner of Keefe, Campbell, Biery and Associates, a Chicago-based workers' compensation defense firm. This column was reprinted, with permission, from the firm's client newsletter.