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.
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:
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:
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:
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:
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:
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.
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