While I personally have had concerns about the ‘quality’ of many IME assessments for some time, I did not realise how widespread the concerns were about the fairness of such assessments until relatively recently.
Injured workers representatives are certainly concerned, both through traditional union representation and the social media networks that have arisen in recent years. Social media sites have been outspoken in their criticism of IME assessments – inferring that almost all such assessments are unfair. WorkCover Victims Diary (based in Victoria) runs a website that has been particularly critical of IME opinions and has resorted to naming and shaming those practitioners who they say are biased.
I am increasingly aware of concerns by treating GP’s and specialists alike. It is acknowledged by most medical practitioners that bias is frequent in IME reports. Many rehabilitation providers will also privately express concerns, yet rarely publicly because their funding is largely controlled by insurers or claims agents.
I have discussed these concerns with insurers. They seem to be the only party without current concerns, apart from some IME assessors themselves. It has been acknowledged to me that in the past insurers could obtain reports to suit their purposes, but they say that the situation is fairer now.
While it might be tempting to dismiss the concerns of injured workers groups as hysterics, whinging and victim behaviour, I am not so sure.
Through my own work I come ‘face to face’ with the opinions expressed in IME reports and, at times, the IME assessors themselves. This occurs when I am asked to comment on IME opinions as a treating practitioner or independent assessor. At times I attempt direct dialogue with an IME assessor, although this is rarely ‘allowed’ by the system. I also have the opportunity to critically review IME opinions presented before a court or tribunal in the course of preparation to offer my own opinion and prepare for cross-examination.
I can recall an IME assessor some years ago expressing the opinion that a relatively rare medical condition being claimed as work-related was caused by the use of eye drops. The assessor failed to state that the particular condition is much more likely to be idiopathic i.e. without known cause or due to trauma, rather than due to the small amount of a drug that might be absorbed systemically from eye drops . The assessor confidently stated the eye drops (a non-work related medication) were the cause, without any discussion about other possible causes. This cleared the insurer of any liability. To me it seemed convenient to declare a non-work related cause rather than acknowledge an unknown cause where the insurer might potentially be liable.
The case above illustrates two issues.
1) Privacy principles make analysis of independent opinions difficult
I can’t provide any more details of this case without risking the breach of privacy principles. While such principles are important and necessary, they prevent objective analysis and public discussion about quality and impartiality of independent opinions.
2) Medical obfuscation
The case illustrates that an assessor can wrongly attribute causation that might not be obvious to a non-medical person. The opinion might seem reasonable to the person being assessed or the insurer or claims agent that requested the report. The ‘medical truth’ might only come out if the matter was heard before a formal legal decision-making body. In the majority of such assessments this never occurs, or if it does, it is far too late to influence acceptance of liability for appropriate treatment.
A more common thread in IME assessments is that the workers’ claimed condition is due to underlying/pre-existing degenerative disease, even though there was a clear precipitating injury and no pre-existing symptoms, satisfying the legal definition of causation in most jurisdictions.
Similarly many IME Assessors don’t accept many surgical procedures and other types of intervention as reasonable in the face of contrary opinion from currently-practicing specialists in the field.
The problems referred to above have significantly dented confidence in the fairness of the current systems to determine liability and reasonable treatment for injured workers. While justice might eventually prevail through our courts system, that process is too slow for most people. Often they have sustained significant damage through psychological stress or delayed treatment before matters are brought before the appropriate court or tribunal.
In a series of blog articles entitled:
IME ASSESSMENTS – THE GOOD, THE BAD & THE UGLY
over the next few weeks, I will analyse these issues in more detail as follows:
1. WHAT IS AN IME ?
2. CURRENT ISSUES WITH IME’S?
3. FIXING THE SYSTEM – ARE THERE ALTERNATIVES TO IME’S?
Look out for my posts.
Comments and discussion welcome.