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November 21, 2017

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Independent Medical Exam - Doctors

The selection of a doctor to perform an independent medical examination is a very crucial decision, for the employer, in any type of petition whether Claim, Termination or Modification Petition.  Several factors need to be considered before selecting the appropriate doctor. 

First of all, consideration should be given as to what specialty the physician should have and the physician should be Board Certified in that specialty, such as Orthopedics, Neurology or Psychiatry.  In addition, the doctor should have active clinical practice and preferably, if appropriate, an active surgical practice.  There are doctors who perform IMEs who have no active surgical practice and have little or no clinical practice.  If a significant portion of the doctor’s practice consists of medical legal work the doctor will not be viewed favorably, in terms of credibility by the Workers’ Compensation Judge.  Also, when the doctor testifies in deposition, we always emphasize, during the qualifications portion of the deposition, the doctor’s surgical practice and how many surgeries are performed per week or per month.  In addition, the fact that the doctor has an active surgical practice may lead the Judge to believe that the doctor is more current in his or her professional skills due to ongoing application of those skills in the operating room. 

The next consideration is whether the doctor has been overused by the defense bar.  There are a number of doctors whose names, once they are seen by a Judge in litigation, may invoke, in the Judge a response to disbelieve the doctor regardless of the doctor’s stellar qualifications.  It is probably not a good idea to employ these doctors in a case unless, for some reason there is no other doctor available to do an examination due to conflicts of interest or other reasons in that particular litigation. 

Another consideration in selecting a doctor is whether that particular IME doctor is "customer friendly".  We have worked with doctors who are difficult, if not impossible to reach on the phone when we wish to discuss questions about their report or to request a follow up report due to the need to review additional records.  This creates additional work for the defense attorney and in turn additional billing expense for the client.  Also, this may create a delay in the case if an examination has to be canceled or postponed by the IME doctor’s office. 

Once the doctor has been selected, it is a good idea to have defense counsel, rather than the claims adjuster, draft a cover letter for the examination, particularly when the case is already in litigation.  When a defense attorney drafts a letter, the defense attorney is careful to frame the medical/legal questions for the doctor to address in the IME report.  The defense counsel carefully drafts the letter to include the entire acknowledged work injury that must be addressed in the exam, including any revisions and additions to the original injury that had been made in subsequent litigation in the way of Judge’s Decisions.  It is crucial, in a Termination Petition, that the doctor address the entire accepted injury as of the time of the examination. 

In the instance of a second or third Termination Petition, it is required that the doctor address the change in the claimant’s condition between the prior physical examinations and the examinations on which the new Termination Petition is based. 

Finally, caution should be exercised in terms of using doctors with whom the employer, defense attorney and claims representative are not familiar.  This must be balanced off against the factor, earlier discussed, of using doctors who are too familiar or overused in the view of the Workers’ Compensation Judge. 

We are always looking for new well qualified medical experts for referral of physical examination in our law practice. 

The articles posted at this site have been written by William H. Lynch, Jr., Esquire.  They are for informational purposes only and do not constitute legal advice or suggestions.  Any copying, reproduction, or use of this article, in whole or in part, without the written express permission of the Law Offices of William H. Lynch, Jr. is strictly prohibited.  For a specific legal question or case referral, kindly call or email Bill

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