Most long-term disability plans and insurance policies give the insurer the right to have the claimant “examined” by a physician or other professional of its choosing as a condition to approving benefits.
The “independent” medical examinations or IMEs are usually far from independent. IMEs have become a very profitable enterprise for companies that arrange the examinations for insurers and the physicians they assign to perform them. Today, a physician can typically make far more money per hour performing IMEs for insurance companies than seeing patients of her own. To ensure repeat business from insurance companies, the companies that arrange the IMEs have the incentive to select physicians with a propensity for findings that claimants are not too impaired to work. The ERISA attorneys at Robinson Warncke recently met with one physician who decided to stop performing IMEs and paper record reviews for insurers after being asked to revise his conclusions to favor an insurer.
You don’t have to take our word for it. The medical profession itself has noted in peer-reviewed journals the questionable quality of many IME’s, including direct questioning of their so-called “independence”:
IMEs are generally neither objective nor of superior quality. Although called “independent,” the examiners are dependent on their corporate clients for their livelihood. Changes brought on by reform allow employers to choose the IME companies and the companies to choose the physicians providing the services. This has resulted in a captive audience of workers/patients sent to these providers with cost reduction as the measure of measuring success. Lax, M. Independent of what? The independent medical examination business. New Solutions. 2004; 14(3): 219 – 51.
Therefore, physicians devoting the majority of their practice to performing medical-legal evaluations have the greatest potential for bias. In this context, the doctor “knows who is paying the bill.” Far more IME’s are ordered by insurance carriers and defense attorneys than by claimants and plaintiff attorneys. Over a period of time, the IME physician develops a certain reputation based on his or her track record. These experts have in a sense already settled on their position before weighing the facts and science of the case. Schofferman, J. Opinions and testimony of expert witnesses and independent medical evaluators. Pain Med. 2007; 8(4): 376 -82.
Likewise, the New York Times did a story on insurance exams in 2009, with some notable insider testimony detailing the poor conduct of allegedly “independent” medical examiners who consistently found against claimants no matter how injured they were. As one interviewed examining physician stated, “If you did a truly pure report, you’d be out on your ears and the insurers wouldn’t pay for it. You want to give them what they want, or you’re in Florida. That’s the game, baby.” The article also quoted a medical review of cases finding a routine tilt toward the benefit of insurers by minimizing or dismissing injuries. This was accompanied by a comment by Dr. Stephen M. Levin, Co-Director of the Occupational and Environmental Medicine Unit of Mount Sinai Medical Center that “There are some noble things you can do in medicine. This ain’t one of them.” “Exams of Injured Workers Fuel Mutual Mistrust”, New York Times (4/1/09)
In addition to the financial incentives, a physician performing an IME does not have a traditional doctor-patient relationship with the claimant. So, unlike a treating physician, the IME doctor has virtually no professional liability or risk of consequences for “overlooking” important signs, symptoms, or medical evidence or for misdiagnosing the claimant during the examination.
Certain insurers such as Hartford and Aetna have traditionally ordered IMEs. Today, however, we have seen a recent uptick in IMEs ordered by several other disability insurers, including Cigna, Prudential, and Guardian for claimants who are already on benefits often providing the insurer an excuse for terminating benefits.
Unfortunately, under ERISA, federal courts have generally found that an IME gives the insurer a stronger basis to deny or terminate benefits than a paper peer review, even where a claimant’s disability is supported by treating physicians. This is particularly true in the case of psychiatric conditions or medical conditions that are difficult to assess through objective testing and depend on the patient’s credibility in describing subjective symptoms such as pain or fatigue. With an IME, the physician or psychologist selected by the insurer can claim to have assessed the claimant’s credibility by detecting signs of symptom exaggeration during the examination. In a recent neuropsychological examination, a psychologist selected by one insurer used 8 different validity tests so that while the claimant passed 7 of those tests, the IME psychologist could point to the one validity scale in question as evidence the claimant must not be giving his best effort on the testing and must be faking.
In the context of a disabling medical condition that does not produce mechanical bodily impairments but instead prevents the claimant from engaging in sustained work due to symptoms such as progressive pain, fatigue, or sleepiness, a 30-minute examination by an IME doctor cannot be expected to reveal anything meaningful about the claimant’s disability. For instance, in a recent IME ordered by Prudential for a claimant with chronic fatigue and fibromyalgia, an IME physician who admitted the claimant’s reports of chronic pain appeared credible, nevertheless refused to assign any work restriction because in his words “the problem is not capacity but rather a tolerance” based on the fact that activity caused her significant pain. In other words, no matter how painful something is, if you can possibly do it in spite of the pain, you have no work impairment. Prudential used this unreasonable theory to terminate benefits.
A claimant’s refusal to cooperate in attending an IME can by itself justify termination or denial of benefits. There are some things a claimant can do with the assistance of an attorney to try to mitigate the harm associated with a biased IME. The claimant can request to have a witness present, preferably a licensed nurse to observe what the IME physician does and fails to do and report anything untrue in the IME report. A claimant can put the insurer on notice if the physician selected has a reputation for bias. A claimant might be pre-emptive in scheduling her own IME with an unbiased physician.
Especially in the context of a disability based on psychological or cognitive impairment, it is important to read the specific policy language as some policies only allow the insurer to have the claimant examined by a physician rather than subject herself to testing by a psychologist.
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If you have been notified you are being subjected to an insurance medical examination, an expert in ERISA long term disability insurance can help minimize the risks inherent to this process. Contact us for a free, no obligation phone consultation.