A client recently asked whether he had to go to an IME. Of course the answer is yes, but based on our conversation, we understood clearly that his worry centered around the fact that the IME doctor wouldn’t likely be on his side. And his concerns ring true.
There are important rights that our clients have with respect to the IME process. Workers’ Compensation Law § 137 gives claimants the right to take a chaperone with them to these IMEs, and to audio-record or videotape the examination. Given the availability of smart phones, having a chaperone videotape the examination seems a worthwhile precaution, and can provide an important tool to the lawyer for cross-examination of the IME doctor at a later deposition when the doctor’s credibility is at issue.
A number of years ago, The New York Times ran a series of investigative articles on the workers’ compensation system in New York, which included among them, a close look at IMEs. No one that practices workers’ compensation law was surprised with the NYT’s findings that the reports resulting from the examinations they reviewed were sometimes fraught with inconsistencies, inaccuracies, and at times, outright lies. In the article, the NYT detailed a videotaped examination of a claimant where the examiner noted in the videotape back spasms and tenderness to palpation at the neck, yet the written report found no back spasms and no tender neck, concluding in fact that there was no injury at all. When questioned about this inconsistency, the doctor replied “[i]f you did a truly pure report, you’d be out on your ears and the insurers wouldn’t pay for it. You have to give them what they want, or you’re in Florida. That’s the game, baby.”
To be clear, this is not a pervasive problem, and not every circumstance calls for videotaping the examination. It is important, however, to keep in mind that the IME doctor is hired by the insurance company and was hired to provide an alternative view of your doctor’s assessment.
We at Zea Proukou PLLC always recommend that you contact us whenever questions arise about the workers’ compensation process and how it affects you.