'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
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
- 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
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
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
- 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
- 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
What is an Independent Medical
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
- 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
- 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
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
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
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
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
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
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
- 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
Who are the IME
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
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
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:
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
- Doctors were unaware of changes made on their reports;
- 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
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
Frequently Reported Problems
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
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.
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
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.
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'
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.
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
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
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
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.
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.
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
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
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 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
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
I called the brokers afterwards and asked why they sent
me to this guy. just one of the doctors to whom we send
And I was told he's just one of the doctors to whom we
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.
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
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
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
2. Amend the Workers' Compensation Law to reflect the
A. Call IMEs "Insurance Carrier Exams"
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
- 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
- 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;
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
Justice Foundation of Washington. D.C.
Copyright 1998 New York State AFL-CIO and NYCOSH
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