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Unjust Treatment: 'Independent' Medical Examinations & Workers Compensation in New York State

A Special Report prepared in 1998 by the New York State AFL-CIO and the New York Committee for Occupational Safety and Health.
For more information on the origin of this report, click here.

New York State law concerning Independent Medical Examinations was extensively amended in 2000. The report below reflects the criticisms of the pre-2000 law, some of which were addressed in the amendments. For additional information concerning the amended law, see

Each year approximately 500,000 occupational illnesses and injuries are reported to the New York State Workers' Compensation Board. Of these, several thousand claims for occupational disease are challenged by workers' compensation insurance carriers for reasons that frequently defy close medical analysis and too often defy common sense.

With millions of dollars in profit at stake, insurance carriers:

  • challenge valid occupational disease claims, which results in workers often failing to pursue their cases or eventually settling for less than they are entitled to;
  • claim that many workers are less disabled than they are or that they are not disabled at all; and
  • raise issues contradicting workers' claims that their injuries and illnesses are a result of work.

As a consequence, injured and sick workers are often forced into prolonged wrangling with insurance companies in an attempt to get their claims established. The process is so tortured, convoluted and demeaning that many workers do not file for compensation or become so discouraged that they fail to pursue their valid claims. Rather than attempt to use the workers' compensation system, many workers use their own health insurance -- if they have any -- to get needed medical treatment. Many others rely on welfare or social security disability. In either case, the insurance companies and employers externalize the costs of job-related injuries and force the public to pick up these expenses through taxpayer-funded social welfare programs and higher medical insurance premiums.

What is particularly unfair is the routine challenge by insurance carriers of workers' claims for occupational disease and frequent disputes over the degree of workers' disabilities in cases that have already been established. The challenges over occupational disease can often mean, de facto, the cutting-off or slashing of wage-replacement benefits and medical treatment before any hearing takes place.

In New York State, a pivotal point for injured workers filing workers' compensation claims is the medical evaluation. When a worker is initially injured or made sick at work, the worker notifies the employer, sees a doctor for diagnosis and treatment, and files a claim. Based on the treating physician's report, workers will be entitled to receive wage-replacement benefits and reimbursement for medical treatment for injuries and illnesses related to work.

Once the claim is filed, the insurance carrier has the right to demand that the injured worker see a doctor chosen by the insurance company. This speciously named evaluation is called an Independent Medical Examination, or "IME." However, IMEs are anything but independent and they frequently don't appear to be "medical" examinations of any kind. They are paid for by -- and conducted on behalf of -- insurance companies, self-insured employers and the State Insurance Fund, a quasi-state agency that provides workers' compensation insurance for approximately 40 percent of the state's employers. Moreover, IMEs are used by these interested parties as ammunition to challenge claims, lawsuits and the evaluations of injured workers' treating physicians.

Claimants must attend IMEs or risk hampering their own cases. In particular, workers receiving wage-replacement benefits and/or medical treatment may have their benefits slashed or cut off entirely if they fail to appear.

The results of this initial evaluation conducted by Independent Medical Examiners are critical for injured workers attempting to establish their cases. Based upon the initial IME evaluation, the insurance company can unilaterally, without a hearing, and with no prior notice, slash or completely cut off the wage-replacement benefits and medical treatment an injured worker is receiving. Although the injured worker can later dispute such actions at a hearing, it can take between six weeks and six months for such a hearing to be scheduled after receipt of notice from the insurance company that benefits are being cut. In New York, benefits can be cut to as little as one-sixth of a worker's average weekly wage or $40 per week.

Consequently, many workers are forced back to work prematurely, often re-injuring themselves, aggravating their injuries or worsening the illness they contracted. Other workers are driven onto a variety of taxpayer-funded programs such as social security and welfare.

It is clear that IME reports frequently downplay the ailments of injured and sick workers. This should not be. Based on interviews with scores of injured and sick workers, review of typewritten IME reports, and discussions with lawyers familiar with the workers' compensation system, occupational health physicians, and advocates for injured workers, this report will show that:

  • There are virtually no laws or regulations governing IMEs in New York State. There is, for example, nothing to prevent a doctor without a license to practice in New York State from conducting an IME.
  • Most IME examinations are cursory at best. Not one worker interviewed for this report described an examination lasting more than 20 minutes. Many workers said their exams were five minutes or less.
  • The IMEs are not always conducted in traditional medical settings, and are often a significant distance from the claimant.
    Information in final IME reports isn't always consistent with the IME doctor's own examination. Many doctors work for IME brokerage firms, which have been found to alter the findings of doctors when generating final reports and which are now the target of a fraud investigation by state authorities.
  • Even when findings are consistent, the quality of the reports is extremely uneven. Some IME doctors use boilerplate reports which are virtually the same from one patient to the next. There have even been cases where there has been a failure to change the name in the body of the report.
  • Claimants are not permitted to bring anyone to their IMEs except their own treating physician. Doctors conducting IME's routinely violate section 206A of New York State's Labor Law which requires notification of claimants that women have the right to have a female doctor or a female of their choosing present when an examination is conducted by a male doctor.
  • Many non-English speaking claimants describe significant difficulty communicating with IME doctors.
  • Most doctors performing IMEs appear to have little knowledge or training about work-related illness.
  • IME doctors frequently underestimate the level of claimants' disabilities, a trend reflected by the decisions of administrative law judges who frequently find higher levels of disability than those found in IME reports. Claimants rarely see reports until their hearing -- if they see them at all. As a result they have no due-process rights or opportunities to rebut the IME findings.

This report is intended to stimulate thought and action about effective and humane policy-making with regard to the IME process. It begins by summarizing the examinations themselves. It then reports on the role of IME doctors. A discussion follows of the quality of exams provide.

The report also presents the stories of many injured workers. Some are told in the words of the workers themselves, some are abstracted from their words, and many more are integrated within the text. The goal is to create something of a composite portrait of IMEs.

Finally, the report considers the financial and personal impact of the existing IME process and makes proposals for transforming it into a more independent, democratic and equitable process.

What is an Independent Medical Examination?

The first thing to know about a so-called Independent Medical Examination (IME) is that it is neither independent nor a bona-fide medical examination.  Although IMEs purport to be independent, it is apparent from the pattern of behavior and the relationship of IME doctors to insurance carriers that this is not the case. The IME itself is conducted by a doctor who has been hired by a workers' compensation insurance company, a "self-insured" employer (a company providing its own workers' compensation insurance) or the New York State Insurance Fund -- parties with a financial interest in minimizing the extent of injuries and illnesses suffered by workers.

The IME is nothing like a medical exam. According to interviews with injured workers and occupational health physicians, the typical IME is vastly different than the type of thorough examination needed to provide a sound basis for important decisions about wage-replacement benefits and medical treatment for injured and sick workers. Exams are generally limited to:

  • completion of a medical-history form by the claimant;
  • a review of available documents provided by the worker's ("treating") physician;
  • a brief medical exam during which the IME physician asks questions about symptoms, treatment previously received, whether the medical condition is improving and, in some cases, during which the IME physician may perform a limited physical exam;
  • and the recording of impressions, either in writing or on tape-recorder, regarding the extent of injury or illness, the extent of disability, and what treatment, if any, is called for.

The IMEs ostensibly provide insurance carriers with their own "independent" medical evaluations of workers' compensation claimants. In other words, the exams address whether or not the injured or sick worker is as disabled as the injured workers' doctor says and whether the worker needs ongoing care. But according to one attorney familiar with the system, most IME doctors will only be rehired by insurance carriers if they consistently disagree with the evaluation of the treating physician.

IMEs are also used to make determinations utilized by insurance carriers in connection with paying medical bills and settling, arbitrating and litigating claims over wage-replacement benefits, addressing questions such as What is the final degree of disability? In addition, IMEs are intended as a safeguard against fraudulent suits, or claims without merit. In other words, is this claim valid and genuine?

The IME is not intended to provide injured and sick workers with medical treatment or to give medical advice. Indeed, workers can refuse medical advice from the doctor.

The second thing to know about an IME is that there are no regulations that govern the exam. According to representatives of the New York State Health Department and the New York State Workers' Compensation Board, there is currently no language in the New York State Workers' Compensation Law referring specifically to IMEs. Without rules and regulations, injured workers, who are often in a vulnerable condition both medically and financially, are subject to abuse, as well as arbitrary and capricious treatment by IME doctors who are financially tied to the insurance carriers.

The entire exam can be as brief as five minutes, and typically takes no longer than 15 minutes. In fact, not one worker interviewed for this report described an IME lasting more than 20 minutes, with the exception of psychological exams. Also reported were exams that consisted of nothing more than a doctor reviewing the claimant's drivers license.

Workers are often given little notice about their appointments, which frequently require an hour or more of travel, and which they must attend. Many injured workers, because of their medical condition, find travel to and from the IME difficult and taxing, especially if the evaluation is scheduled at an off-hour and/or at a considerable distance from the injured worker's residence . Such difficulties are yet another disincentive to workers who wish to pursue their claims and establish their cases.

As a result of the IME evaluation, claimants whose cases have not been established may have their wage-replacement and medical benefits cut off or diminished dramatically -- without a hearing or chance to rebut the findings of the IME . In these cases, the IME determination of the extent of disability (whether the impairment is mild, moderate, marked or total) allows the insurance carrier to unilaterally cut, without a hearing, an injured worker's wage-replacement benefit and/or prevent an injured worker from receiving medical treatment prescribed by his treating physician.

Thus, a worker who was earning an average weekly wage of $600 and has been out of work for six weeks with a back injury, under supervision of his or her treating physician, would collect $400 per week in compensation for a temporary period. If the doctor who conducted the IME found the worker sustained only a mild partial disability, the workers' wage-replacement benefit would be cut to approximately $100 per week. The worker would then have to wait for a hearing at which he or she would present evidence that the evaluation conducted by the IME doctor underestimated his or her disability -- a wait which can be six weeks at the shortest and often as much as six months.

When the hearing is finally scheduled, injured workers continue to be at a disadvantage. Interviews with occupational health physicians and injured workers, as well as testimony presented at hearings before the state legislature, reveal that IMEs and IME reports are often considered with equal -- and in some cases greater -- weight than the much more comprehensive exams which have been the basis for diagnosis and treatment by the claimant's treating physician. As one occupational health doctor said, "The last diagnosis is usually the one the [workers' compensation] judges go with." Consequently, workers frequently are advised to see their own doctors after seeing the IME to insure that they have medical evidence to contest IME's evaluation. This is sometimes paid for at their own expense.

In those cases where the IME doctor has determined that the medical treatment prescribed by the treating physician is not needed, medical treatment for the injured worker is cut off by the carrier. This can mean the difference between a permanent or temporary disability and whether or not a worker is forced back to the job, where injuries and illnesses can be aggravated. Once back on the job, injured and sick workers are also more likely to miss work due to illness. This not only results in costs to employers that should be easily preventable, but it perpetuates a cycle of pain, suffering and poverty for many working men and women.

Who are the IME Doctors?

New York State's Workers' Compensation Law stipulates that medical exams must be conducted by "qualified physicians" or by a "registered nurse or other persons trained in laboratory or diagnostic techniques" who are under the "active and personal supervision of an authorized physician." [Subdivision 4, Section 13 a of the Workers' Compensation Law of New York State, as amended by chapter 922 of the laws of 1990.] Every worker interviewed for this report was seen by a physician.

Typically, a doctor earns between $100 and $400 per exam, but more complex cases carry higher fees -- sometimes reaching $1,000 -- according to physicians interviewed for this report. "For doctors, IMEs ...mean quick, easy money," according to a January 5, 1997 article in the New York Post entitled "Doctored Diagnosis: How Altered Medical Reports Could Mean Lower Benefits for You." IMEs are highly profitable freelance assignments for some doctors. For others, however, they provide the bread and butter of their practice. ["Doctored Diagnosis: How Altered Medical Reports Could Mean Lower Benefits for You," by William Sherman, The New York Post, January 5, 1997- January 7, 1997.]

IME doctors can also earn modest sums for appearing at hearings. Because medical evidence is critical to many cases, live testimony by both treating and defense physicians is the rule at formal hearings at which medical evidence is required. The Workers' Compensation Board encourages the use of medical depositions, but in practice they are rare.

One New York City physician maintained that there are two broad categories of IME physicians: those who "don't believe in work-related diseases" -- whose orientation results in the minimizing of disabilities, and those who "couldn't make it in regular medical practice."

This doctor and others also stated that physicians with thriving private practices generally do not have enough time -- or the desire -- to perform IMEs.

According to occupational health physicians interviewed for this report, in some locations, virtually all available doctors in certain areas of specialization conduct IMEs; in other areas, many doctors never perform an IME. In rural or less populated areas of New York State, according to one doctor from upstate New York, "there are a lot fewer specialists to recruit from," and therefore more likelihood that II everyone in town II will be performing IMEs.

"What strikes me is the incentive for the occupational physician in the community: if they are going to participate [in the conducting of IMEs] they will be doing it on behalf of the insurance carrier. That pool is expanding, whereas the pool of doctors for workers to see appears to be shrinking."

Doctors, attorneys and injured workers interviewed for this report expressed concern about the lack of specific legal criteria to define who can and cannot perform an IME . They contend this lack of specificity creates opportunities for incompetent doctors to perform the exams.

Cases have been reported of doctors from other states being flown in to conduct IMEs -- even though they have no license to practice in New York State. Moreover, a number of workers have reported being referred to doctors that they later discovered had been disciplined by authorities in New York and other states, according to information compiled by Injured Workers of New York, a nonprofit advocacy group.

In Buffalo, the group contends, carriers are still using one IME physician who was:

  • forced to surrender his license in Massachusetts,
  • convicted in New York of Medicaid fraud and mis-prescribing drugs,
  • fined and disciplined in Pennsylvania for a larceny conviction, and was
  • disciplined in North Carolina for immoral or dishonorable conduct, unprofessional conduct, for conviction of a crime involving moral turpitude, and for obtaining medical practice by false representations. [Questionable Doctors Disciplined by State and Federal Governments: New York, by Sidney Wolfe, MD, Kathryn Franklin, Ph.D., Phyllis McCarthy, Alana Bame and Benita Marcus Adler, Public Citizen Health Research Group, 1998.]

Several interviewees also complained about conflicts of interest that go unchecked. "There are certain academically situated doctors who seem to be willing to take money to play the insurance carrier's position," one doctor noted. "It seems workers should be able to expect more neutrality than that."

Who are the IME Brokers?

Insurance carriers used to maintain long lists of private doctors who were on call to perform IMEs. However, as workers' compensation claims continued to mount, carriers began employing IME brokerage firms. Because carriers must decide quickly whether to honor workers' compensation claims, doctors are under pressure to submit their findings as soon as possible. Consequently, IME brokerage firms are frequently used to speed the process, with doctors phoning in their examination notes to administrative and clerical staff, who complete reports, signing doctor's names and submitting the findings to the insurance company. According to published reports in the Boston Globe, the Buffalo News, the New York Post and other publications, most brokerage firm staff who completed reports had no medical training whatsoever.

Today, independent medical examination companies act as go-betweens, scheduling doctors to examine men and women who have filed workers' compensation claims. They are also responsible for generating doctors' reports and interacting with insurance carrier claims examiners. In this hugely profitable business, doctors' fees range from less than $100 up to $1,000 per exam, according to published reports. Their final reports influence decisions worth tens of thousands of dollars to the insurer and to injured and sick workers. ["Disabled or Not? State Probes Alleged Fraud by Medical Examination Firms," by Fred 0. Williams, Buffalo News, February 16, 1997.]

Most experts agree that, because IME firms are paid by insurance companies, or self-insured employers, they have an incentive to play down job-related injuries. Widely published reports also reveal that some of these firms routinely change the doctors' wording, or press physicians to revise their reports.

Needless to say, the impact on the disability awards received by injury and illness victims is incalculable. These alterations result in denial, delay or diminishment of workers' compensation payments for crucial treatment, not to mention wage-replacement benefits.

One IME brokerage firm, Medical Determinations of New York, was found to have altered reports on a vast scale, according to a series of articles in the New York Post in February 1997. The company provided more than 40,000 IMEs annually for more than 600 insurance companies, government agencies and self-insured employers. These altered reports to insurers and self-insured employers downplayed "the impact and extent of injuries to people involved in automobile accidents, workers' compensation claims and disability cases.["Doctored Diagnosis: How Altered Medical Reports Could Mean Lower Benefits for You," by William Shennan, The New York Post, January 5, 1997- January 7, 1997.]

The Post story, based on a review of internal company documents, reported that the State Insurance Fund "suspended its multimillion-dollar dealings" with Medical Determinations in July 1997 after discovering that company employees were signing doctors' names to reports.

  • The Post also found that:
    Original reports were never seen by patients, or their lawyers or doctors. When they requested a copy, they were given the final version prepared by the company -- not the original doctor's version;
  • Doctors were unaware of changes made on their reports; and
  • Changes were made by staff members, some of whom had no medical training. ["Doctored Diagnosis: How Altered Medical Reports Could Mean Lower Benefits for You," by William Shennan, The New York Post, January 5, 1997- January 7, 1997.]

Another company, IME Inc., was also found to have produced conflicting reports in one recent case in Buffalo (see The Case of Mary Jeffords, below). In this matter, the worker received one evaluation, signed by the doctor, which declared that she was totally disabled, and another version declaring her only moderately disabled and capable of working part-time. The company was also discovered in this case to have originally scheduled the worker to see a doctor who was punished in 1985 for Medical Fraud. [Questionable Doctors Disciplined by State and Federal Governments: New York, by Sidney Wolfe, MD, Kathryn Franklin, Ph.D., Phyllis McCarthy, Alana Bame and Benita Marcus Adler, Public Citizen Health Research Group, 1998.]

Complaints filed by injured and sick workers who have obtained questionable IME documents have been the subject of an investigation by the state Insurance Department, the Workers' Compensation Board and the state Attorney General's office for more than a year. Investigators say the probe is focusing on the activities of the "independent medical examination" companies. "We are investigating some complaints from the Buffalo area as well [as New York]," said Donald DeAngelis, fraud inspector general for the state Workers' Compensation Board. ["Disabled or Not? State Probes Alleged Fraud by Medical Examination Firms," by Fred 0. Williams, Buffalo News, February 16, 1997.]

The discrepancies described above raise serious questions about the manner in which IME brokerage companies transcribe and deliver information from doctors to the insurance carriers that pay them, and how insurance companies use the final reports.

Frequently Reported Problems with IMEs

Bad Scene

While most workers interviewed for this paper reported that they had visited doctors in legitimate medical offices, several indicated that they had been "examined" in settings that were in some cases unorthodox, and in other cases, entirely inappropriate. For example, one-worker reported being examined by an elderly doctor in a dark apartment on the Upper West Side of Manhattan, with no one else in the apartment. Moreover, at recent hearings before the New York State Assembly, workers described participating in IMEs conducted in such non-clinical settings as school classrooms and hotels.

In addition, some workers reported having to travel more than an hour for an IME, requiring either extensive use of public transportation or very long drives. For a worker who is injured or sick, requirements to travel such distances become yet another barrier to pursuing their claim.

Curt Care

While most IME exams reportedly last between 10 and 20 minutes, some workers described exams that were extremely brief. One warehouse worker, for example, said the IME doctor looked him over but never conducted a physical examination "with his hands. " The doctor then reviewed the diagnosis of the treating physician and told the worker he was "fine." The entire process lasted five minutes.

By contrast, treating physicians may spend up to an hour or more with patients.

Contempt for Claimants

Many of the workers interviewed for this report described overt hostility from doctors -- hostility that appeared to be without provocation. The workers depict a system which many contend presumes they are frauds until they are proven innocent. One worker recounted hearing a patient who was being seen by the IME doctor being badgered, with the doctor finally yelling "You're not really sick!" Examples of similar contempt -- and sometimes outright belligerence -- abound:

  • A 52-year-old warehouse worker with a herniated disk arrived for his IME using a cane and having difficulty walking or sitting for long periods. The first thing he reported his doctor said to him was, "You're fine. When are you going back to work?" He receives $246.74 per week.
  • A graphic artist with severe RSI symptoms reported that when she first arrived for her IME, the doctor "seemed to have some sort of attitude" and, when she described her pain, he "waved his hand, like, 'So What?'"
  • A 63-year-old garment worker suffering from a torn rotator cuff and tendinitis, waited three hours for his IME, who examined him for five minutes without speaking and then said, "When are you going to return to work?"
  • A pleating machine operator from the Bronx arrived for his IME was deliberately put on the spot. The first question he was asked was "If I gave you 100 and took away six, how much would you have left?" His award was reduced from $202 to $125 per week.
  • A social worker suffering severe back problems was asked by her IME physician -- who she described as "extremely drunk and reeking of alcohol -- about her medical care: "Can't you get an American doctor?" The doctor's license was later revoked.

Unavailable Records

Not one worker interviewed for this report said that they had seen an IME final report in advance of their hearing. Most never saw them at all. As a result, the workers and their treating doctors had no opportunity to thoroughly review the insurance carrier's evaluation of the degree of disability before the hearing. Reports generated by the IME doctor become the basis for decisions made by the insurance carrier -- decisions which in some cases are unilaterally implemented without consultation with claimants and without giving claimants prior notice.

No Witnesses

Several workers reported making an attempt to either tape-record their examinations or bring a witness to observe the proceedings. In each case a hostile confrontation ensued. In one case, a worker brought her attorney to the exam despite the protest of the IME doctor. In what appeared to the worker to be a retributive act, she was told by the doctor that, despite severe symptoms of repetitive strain injury and diagnostic tests (e.g. electromyographs, EMGs) that confirmed the existence of a disabling ailment, she was able to return to work "immediately" and had no basis for a workers' compensation claim.

Since there are no regulations governing the exam, claimants have no right to bring anyone other than their treating physician to the IME exam, which effectively precludes witnesses to the IME. Not even spouses are allowed to attend. Section 206A of the New York State Labor Law requires that female workers be notified that they have the right to have a female doctor or female observer present when they are examined by the male doctor. We know of not one instance where an IME has complied with the law, nor has the New York State Workers' Compensation Board taken any initiative to notify IMEs of their obligations under the law. Needless to say, the Board has never enforced this provision of the law.

Doctored Reports

Several workers described and documented in great detail the altering of a doctor's original IME report. Some of these doctored reports were generated by IME brokerage companies, others were generated by doctors themselves. In one case, a patient experienced the altering of reports twice, by two different doctors, first in 1987 and again in 1997. In the latter instance, the patient, a former salesman who had been struck by a 240-pound floor display while at work in 1985, was continuing to describe back pain so severe that the doctor's IME report stated he recounted "difficulty doing activities such as washing dishes and washing his hair."

The IME's report, dated August 19, 1997, concludes that "the prognosis for improvement is unfortunately extraordinarily limited at this time." Yet, in a letter to the insurance carrier's attorney written on August 26, 1997, the same doctor wrote "it is very difficult to attribute a percentage to the various factors present in Mr. Johnson's inability to return to the work force" and that the patient's ailments no longer appeared to be physical, but psychological. [Correspondence with Linza Ford, Injured Workers Coalition of the State of New York, May 13, 1998 and copies oftyped IME reports and related correspondence.]

The Case of Mary Jeffords

Mary Jeffords has two steel rods and four screws near the base of her spine and uses a wheelchair to get around. She also has retinal scarring in her eye, and nerve damage in her arms -- all the result of an on-the-job assault in 1987. Her injuries stem from an attack at the hands of a psychiatric patient in the Long Island group home where she worked as a supervisor.

After she was examined by an IME doctor, two versions of the report about her condition surfaced. One was used to assert that her disability was only a "moderate" -- not a "total" -- disability, enabling her to work part-time. The other, signed by the same doctor, declared her to be totally disabled. The reports were prepared by an IME company.

When Jeffords brought the discrepancy to the attention of Liberty Mutual Insurance Co., the insurance company covering her case, the company denied knowing about the total disability version of the report. When Liberty pressured the IME brokerage company, IME Inc., for an explanation, the firm provided a letterhead document, signed by the IME doctor and dated August 23, 1996, stating that he altered the last page of the original report after reviewing his notes and listening to his own dictation. (He did not, however, alter the first six pages of the report, which document in great detail Jeffords' total disability. ) Yet the precise reasons for his changed assessment remain unclear. After her claim was appealed by Liberty Mutual four times over a 10-year period, Jeffords was judged to be suffering a total disability. She now receives $280 per week in wage-replacement benefits, but she feels that her case will never be resolved because her medical treatment will always be fought by Liberty Mutual. "I'm supposed to get medical benefits, but they're still contesting them," she said. "I expect this to be a lifelong situation. Every bill is a fight and I expect it to be like that until I either die or get better."

Published reports reveal that Liberty Mutual found IME Inc.'s explanation "unacceptable," and dropped the company in September 1996.

An investigation by the Frauds Bureau is pending.

No Due Process

A recent federal appeals court ruling, Barnett v. Sullivan, confirms that there are significant constitutional issues regarding due process in Pennsylvania's workers' compensation system that have implications for almost every state in the country including New York. The due-process issues arise out of the way in which IME reports are utilized by insurance carriers.

The ruling held that a provision of the Pennsylvania workers' compensation law violated the due-process rights of injured workers. The court held that private insurance companies violated the constitutional due-process rights of claimants when, acting as "an arm of the state, " they participated in cutting workers' compensation benefits without a hearing. The court reasoned that carriers were acting as state agents because they were providing public benefits which honored state entitlements.

If insurance carriers in New York are similarly found to be "an arm of the state," then provisions of the state's Workers' Compensation Law permitting unilateral denial of medical treatment and/or wage-replacement without prior warning and before a hearing may also be vulnerable to claims that they are unconstitutional. In New York State, IME reports become the basis for decisions made by the insurance carrier about cases in which there is a continuing award. These decisions may be unilaterally implemented without prior notice being given to claimants, and appear -- in light of the Pennsylvania ruling -- to be unconstitutional.

Workers interviewed for this report recounted a startling lack of due process rights in relation to IMEs. Workers reported that often one-sided reports generated by IME doctors became the basis for decisions by the insurance carrier. These decisions unilaterally deny, cut off, diminish or delay wage-replacement benefits and medical treatment -- without consultation or prior notice. Although the rulings can be appealed, some workers were intimidated by the prospect and accepted decisions that were clearly inconsistent with the findings of their own treating doctor.

Case Studies

The stories of four victims of workplace injuries or illnesses are detailed in the following section. These workers all underwent at least one independent medical examination, and each had an unfortunate, sometimes unsettling experience. The names and particulars have been changed.

Kate's Story

When I first walked in, he seemed to have some sort of attitude. I told him I was in pain, and he waved his hand, like So what?

He didn't want to hear about my neck. He said if I had the tendon in my wrist operated on that would take care of the pain in my neck. Then he examined me. He told me to put my head up and down. I told him I couldn't, so he pushed my head for me. He did the same thing with my wrist and arms. I kept saying I was in pain, and he kept waving it away. He wrote down the angles of where he was pushing me on the chart, not what I was able to do on my own.

He said, "what would you like?" I said I wanted to get healthy. I wanted to get back to where I was before this happened -- to grocery shopping, clean up my apartment, and blow- dry my hair. He said, "You may never be able to do the things you did before, but that's life. "

Then he told a story about this kid he knew who was going to school, graduated with honors, and began looking for a job. [The kid] interviewed with a company and got a good position. He made a big point that the kid got everything because he knew someone who could help him get ahead, "Just like you."

I really got the feeling that it was a case of, you do something for me and I'll help you out. I was very, very uncomfortable. It sounded like the doctor was expecting something. It's not that he did anything overt, but to this day, I know he was after something.

People go to doctors, trusting them for help. You go there expecting them to take care of you. You don't expect any advances or anything unethical or unprofessional. [From The Repetitive Strain Injury Recovery Book, Chapter 2, Pages 18-19, by Deborah Quilter, Walker and Company, New York, 1998. Used with the author's permission.]

Ed's Story

I asked [the doctor] if he'd read that I'd had corticosteroid injections that very day, information that was on the prescription and attending doctor's report I'd given him when I walked in the door. No, evidently he had not. He said that was not good, it would hamper his examination. I should have told him to stop right there ...It didn't hinder him, though, as he pulled this, pushed that, had me grip or move my anus, pulled my neck up. Five minutes later he looked me straight in the eye and said "You don't have carpal tunnel syndrome." He never asked me about work. He wasn't interested. He wouldn't listen to me when I told him I'd had an EMG, a scientific test which proved carpal tunnel syndrome.

Ellen's Story

Ellen is a graphic artist for television network news. In 1996 she was diagnosed with several severe ailments associated with repetitive motion: persistent trapezoid myositis; lateral epicondylitis; and wrist tendinitis. Her case was established promptly, but did not preclude her from trouble. It began when her employer's insurance carrier refused to pay for her physical therapy:

I called the Insurance company to see why they weren't paying, and they said "What? You need to use one of our doctors." Before long I got a notice from one of these (IME) brokers. The note said that my appointment was that day and that I would have less then an hour to get there. I called for directions, and they said my appointment was canceled because the doctor had to go to surgery. So I called the broker back and they were very apologetic and they rescheduled.

So I got rescheduled for a month later, and called to make sure. The doctor was hard of hearing, so I had to repeat myself a lot. I just don't understand how he could perform surgery .He would ask me questions, but before I would answer, he would ask me the next question. I told him that every day I go to work, I hurt more. He said "Why do you torture yourself that way?" He looked at my records and said: "They don't have a real diagnosis here." Then he manipulated my arms, and told me that I definitely had full range of motion and that there was nothing wrong with me. He said maybe it would be cheaper if the company changed my work station -- and I agreed. Later when I mentioned ergonomics, he said "Ergo what?" feigning not knowing what ergonomics is.

I called the brokers afterwards and asked why they sent me to this guy. just one of the doctors to whom we send people.

And I was told he's just one of the doctors to whom we send people.

Tammy's Story

Tammy is a 42-year-old video tape editor. Her doctor has diagnosed her as having tendinitis, ulnar neuropathy (her entire ulnar nerve disabled), neck pain, and upper arm pain. Here, she describes her IME exam:

The [IME] doctor held my wrist and forearm in his hands. I stood up and he swung my arm back in a cavalier way, he was very rough with me, pushing me and making me wince. Then he looked at my x-rays, and said, "Oh you don't have the thing you say you have." I found out later that what I had couldn't show up on an x-ray. I heard the woman before me being badgered, she was a uniformed worker, perhaps with the [New York City Transit Authority]. "You 're not really sick!" the doctor yelled. He was loud and obnoxious. I walked in and he was speaking into a Dictaphone and looked up at me, and said, "Bring that chair over there with you." And I turned to get the chair and stopped and realized it was a test. I couldn't lift it anyway, so I dragged and kicked the chair with my leg. During the exam [ which lasted eight or nine minutes] the doctor would ask me a question and interrupt, and then tell me to say it again into the Dictaphone -- it seemed deliberately confusing.

Even though I already had my case established, he said he didn't see anything wrong.

Recommendations & Conclusions

As debates continue about the affect of the workers' compensation system in New York State on business, certain aspects of the system, including the mandatory Independent Medical Examination, appear to be particularly harmful for injured and sick workers. This report shows that the IME system is virtually unregulated and that it is having a damaging affect on the ability of claimants to receive fair and equitable treatment.

The following recommendations, if implemented, would go a long way toward improving what appears to be a system severely slanted in favor of insurance carriers:

1. Re-establish a Workers' Compensation Medical Board.

For more than 70 years New York State employed a panel of doctors who were available, upon referral by a Workers' Compensation Board judge, to assess medical evidence in disputed cases. The doctors were fired in 1996.

The system worked in New York, and similar independent medical review processes have worked well in other states, such as Massachusetts and Maine. [State of Maine Statute --Title 39A, Section 312. Independent Medical Examiners.]

In Massachusetts, for example, the system works much the same way it did in New York State prior to 1996. Medical reports provided by the workers' doctor and the insurance company doctor are discarded, and instead, the state's Industrial Accident Board judge bases his decision on the diagnosis of a state-hired physician. The doctors who examine claimants for the Massachusetts Industrial Accident Board are under far stricter restrictions than those who conduct examinations for insurance companies. Massachusetts requires that its doctors, on completing their examinations, personally fill out the medical reports, including detailed statements on the diagnosis and the ability of injured workers to return to work. They then must sign the report themselves and retain their notes. ["Injured Workers Find Systematic Obstacles," by Stephan Kurkjian and Gary S. Chafetz, Boston Globe, December 18, 1995.]

Any panel established in New York should also be required to undergo training on occupational safety and health to better be able to assess the relationship of a patient's impairment to their ability to return to work.

2. Amend the Workers' Compensation Law to reflect the following concerns:

A. Call IMEs "Insurance Carrier Exams"
As this paper has shown, IMEs are conducted by and for insurance carriers and in no way function as independent evaluations. They are often extremely partisan but are given equal or greater weight than the comprehensive evaluation conducted by a worker's treating physician.
The law should be amended to reflect the true nature of these so-called exams.

B. Fair Examinations

  • Claimants should be given adequate notice of their examination date.
  • Facilities must be appropriate diagnostic settings, either hospitals or doctors' offices.
  • Exams should be scheduled during regular business hours unless otherwise arranged with the claimant.
  • Exams should be held in locations that are not unreasonably far from the claimant's home address.
  • All travel should be reimbursed.

C. Due Process

In accordance with due process requirements set forth in the recent Bamett v. Sullivan court decision, claimants should be entitled to:

  • Disclosure of Information. Each claimant shall be supplied with a written copy of the final IME report at same time it is sent to the insurance company;
  • Response Procedure. Each claimant shall have the right to respond to the IME report -- either themselves or through counsel -- before a decision is made regarding their degree of disability, their wage-replacement benefits or payment of their medical expenses. The insurance carrier should not be allowed to unilaterally base decisions on IME reports without claimants being given a chance to respond, without consultation or without prior notice. A hearing should be scheduled within a brief but reasonable period of time to air any response claimants may have.
  • Witnesses. When attending IMEs, claimants should be allowed to be accompanied by a witness of their choosing and should be free to audio or video-tape the examination.

D. Licensing and Regulation

  • Physicians hired to conduct Independent Medical Examinations must be licensed in the State of New York and certified by the New York State Workers' Compensation Board. They should also undergo a reasonably brief training regarding general principles of occupational safety and health medicine.
  • To avoid potential conflict of interest, IME doctors should be precluded from working for Preferred Provider Organizations or Managed Care medical practices that are also providing primary care to injured and sick workers.
  • Doctors who engage in the altering of IME reports should be subject to penalties and disciplinary action in accordance with state medical practices.

E. Develop, and make available to all claimants, an IME Patient's Bill of Rights

The Bill of Rights would make all claimants, upon receiving notice of an IME, aware of basic rights as enumerated above.

Unjust Treatment: "Independent" Medical Examinations and Workers' Compensation in New York State was prepared by the the New York State AFL-CIO, 100 South Swan Street Albany, NY 12210; Edward Cleary, President; 518-436-8516; and the New York Committee for Occupational Safety and Health (NYCOSH), 275 Seventh Avenue, 8th Floor New York, NY 10001; Joel Shufro, Executive Director; 212-627-3900

NYCOSH is a nonprofit advocacy organization that conducts education and research about workplace safety and health.

The New York State AFL-CIO represents 2.5 million union members in the state of New York.

Funding for this report was provided by the
Civil Justice Foundation of Washington. D.C.

Copyright 1998 New York State AFL-CIO and NYCOSH


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