(With apologies to Australian Cricket Supporters)
This is part 3 of a trilogy about IME’s. Here I put forward ideas about how the system can be improved. In some jurisdictions some of the improvements are already being put in place.
There are not many publications about IME assessments that a doctor can use to help them with the task of assessing compensation claimants from an independent perspective. Some years ago I became aware of an American publication – ‘Writing and Defending Your IME Report’. I eagerly purchased the book in the hope of discovering important principles of IME assessment. How disappointed I was! The book discusses the best way to express your opinion and techniques to get your views across in a courtroom, but nowhere in the book is there anything about being objective or fair in the opinions you might express! How can one expect fair and reasonable IME assessments when even textbooks don’t detail important underlying principles?
I have recently been involved in discussions with other doctors and insurance company representatives about the problems in the Workers Compensation system in Tasmania. I drew from my experience some examples of the problems faced with decision-making within that system. One example I used is of a person injured in a motor vehicle accident in 2007. I saw this person at the request of their solicitor some years ago. One of the important issues at the time was whether a neck operation was required, but the insurer’s IME assessors didn’t think it was necessary. I reassessed the same person recently. No agreement had been reached about the need for surgery. The case was coming up before a higher court and I had been asked to again provide an opinion. The lesson from this case is that it can take years for our legal system to make a decision about whether a neck operation is required or not – a seemingly simple task frequently and quickly made where compensation is not involved.
To summarise, there are 2 main concerns I have about the processes relied on in our compensation systems to deal with contentious matters.
Firstly, there is considerable doubt about the independence of IME assessors when they are paid by one side with a financial stake in the outcome, whether that be by the insurer or a lawyer on behalf of the claimant.
Secondly, a medical decision-making system that utilises legal principles of evidence and a ‘judge’ to decide on the merits of two diametrically opposed positions is slow and fraught with risk of a medically incorrect outcome. Decisions about treatment need to be made quickly. Delays result in progression to chronic pain and development of secondary psychological disorders.
In a ‘normal’ medical setting decisions are made by the doctors with the best interests of the their patient in mind. Where there is uncertainty there is a hierarchy of specialists who can provide guidance. Sometimes a difficult case is discussed with a panel of specialists. There are restraints on spending at a system level. For example very expensive drugs are funded, or not funded, by the public purse depending on their perceived cost-effectiveness.
Our compensation systems need to adopt better processes to resolve disagreements about what is reasonable treatment. This could be extended to other ‘medical’ questions, such as diagnosis, work fitness and residual disability and impairment. Causation is a more difficult matter as legal definitions of causation might not equate to medical definitions of aetiology.
Some jurisdictions already have systems of Medical Panels to decide medical questions. This approach is better aligned to normal medical decision-making. This is clearly the way to go, but there are challenges.
In Tasmania, there is provision for Medical Panels in our workers compensation system, but they are rarely used. This is probably because the lawyers in the system have hesitated to rely on a ‘medical’ process. They have more confidence in a familiar legal process of opposing opinions with a respected member of their fraternity making the final decision. While such processes might be fair and just, the process itself and the delays involved introduce a set of additional negative consequences for claimants. Might I say, the processes ‘Add Insult to Injury’!
Further challenges include the selection of panel members and a means to ensure an adequate supply of ‘medical experts’ to sit on panels. My view is that the medical profession itself should decide who are suitably qualified and experienced to be panelists, but who represents the medical profession? Doctors are more likely to want to be involved in a system set up by the medical profession.
Even with an effective Medical Panel system, there will probably be some issues that will be decided on the basis of traditional legal decision-making. IME assessors will remain a part of that process.
To improve the standards of those doctors who undertake IME work there is a need for training and awareness and systems of accreditation. This has already occurred in some jurisdictions. Victoria now has a system of Quality Assurance for IME assessors. Another strategy is that IME assessments be conducted by a single practitioner, where both sides agree on the choice of assessor. This approach also has merit.
In summary, the current problems with IME assessment are best addressed as follows:
1) Reducing the requirement for IME assessment by improving routine communication between treating practitioners and insurers who make funding decisions. Technology has an important role to play. The ACC in New Zealand has ‘on-line’ certification in place already. Perhaps simple queries by the insurer can be answered by the doctor on-line during the consultation, rather than the busy doctor having to make available separate report-writing time.
2) Legislation that allows treatment to proceed by providing funding while any disputes about liability are resolved can also be helpful to reduce the requirement for insurer approval for investigations and treatment.
3) Improvement in the standards of IME assessors with the development of ‘Codes of Practice’ and associated training about the principles of independence and objectivity is critically important. Peer-review systems to ensure quality are an important consideration. IME assessors need to be able to demonstrate clinical competence in the relevant area of medicine. Practitioners who have not actively practiced should probably be excluded after they have ceased active clinical practice for 5 years (or perhaps less).
4) Publicised and accessible complaint processes need to be in place to ensure that unprofessional or biased IME assessors can be brought to account.
5) Use of jointly appointed IME’s has merit i.e. the insurer and employer’s legal representative agree on the choice of IME to provide an opinion.
6) The most important strategy is properly constituted Case Specific Medical Panels that make important decisions about diagnosis, reasonable treatment and impairment and have an important role in determining medical factors in causation. Eligibility to sit on medical panels should be a matter for the medical profession i.e. which practitioners have the relevant expertise.
In summary, it is important to strive for a system that relies much less of IME opinions. IME assessors that provide opinions should be competent practicing doctors aware of principles of objectivity to avoid bias in their opinions. Medical Panels operating independently of the legal system should make important decisions about disputed diagnoses, what treatment is reasonable and residual impairment utilising standardised impairment guidelines that recognise current clinical practice. Medical Panels can have an important role in providing objective evidence about medical factors in causation of injury or disease.
With these principles in mind, our compensation systems can be fair to all concerned and minimise the collateral damage inflicted on claimants by claims assessment processes.
Insult and Injury 
Peter, you have raised a number of important issues in relation to resolution of disputes that centre upon contentious medico-legal matters. In my opinion, such disputes may be impossible to resolve by convening panels of medical experts.
You have quoted one case from your personal experience. But let me quote at length from another case that concerned the then contentious issue of “Railway Spine” (the 19th century equivalent of “whiplash-associated disorders” or “post-traumatic fibromyalgia”). I dare say that medical experts of today might still be far apart in their respective opinions and that under these circumstances it would be impossible to select members of Medical Panels who did not hold strong views upon the matters in dispute.
Jelly v the London and North-Western Railway Company
Tried before Mr Justice Hannen at the South Lancashire Assizes.
Mr Jelly, a commercial traveller, was travelling from London to St. Albans on the 15th February 1869, when the train ran violently into some coal wagons. The shock threw him heavily against the partition of the carriage, his head striking it, and in the rebound which followed, his back was also injured. He remained a month at St. Albans, and thereafter was removed on a litter to London, to be under the care of Mr Erichsen.
It should be stated that nine days before this accident the plaintiff had consulted Mr Erichsen for an affection of the bladder, attributed to a previous accident on the same line in January 1867. He told Mr Erichsen, on this occasion, that he had never been the same man since the accident in 1867.
The symptoms after the accident in February last were, a frequent spasmodic cough, a deep sighing respiration, frequent vomiting, and exquisite tenderness of the spine.
Not the least of the interesting points of this case was the severe use of his licence by the counsel for the defendants against Mr Erichsen for including in his clinical lectures (to students) on railway cases a statement of the damages which had been awarded in cases in which he had given evidence.
Though Mr Davison made full use of his privilege, the case shows how careful medical men, and especially men in eminent positions, should be of importing any statements into the report of a case other than those of a strictly scientific character.
Mr Davison further accused Mr Erichsen of having invented the phrase “railway spine.” Mr Erichsen rose and said, energetically, that he had always protested against the use of that term. Erichsen regarded the symptom-pictures as organic, and believed the seat of the pathological processes to be located in the spinal cord … To Erichsen, therefore, the designation “railway spine” is to be attributed.
The most powerful medical witness in favour of the defendants was Mr WW Beaver, of Manchester; and he had a great advantage over Mr Erichsen in this way: The plaintiff … had sustained a collision before on the defendant’s railway and had £2000 awarded him … On this occasion, Mr Beever had very accurately forecast the course of the case. He predicted that the patient would recover in four or five months after the conclusion of the litigation, and be able to return to business. He not only did so, but doubled his income.
Mr Beever further said that on the occasion of the first trial, though the patient, as on this occasion, was brought into court on a litter, in three weeks he (Mr Beever) met him at the Victoria Station, on crutches indeed, but so much improved that he did not know him. He predicted recovery from the present accident, and said that chronic inflammation of the spinal cord did not exist. The symptoms, he said, were those of hysteria, and the patient was no more injured than in 1867.
Mr Erichsen, on the contrary, considered there was already partial paralysis of the lower limbs, and the patient would never completely recover.
The shrewd predictions of Mr Beever weighed much with the judge and jury. A verdict for the plaintiff was given, and £1500 damages. The company before the trial offered £2000.
The case will diminish the tendency to the creation of a class of railway-accident experts, who are apt to magnify their special experience, to the disparagement of other witnesses and of medical testimony generally.
PANELS, PANELS, PANELS OUCH! OUCH! OUCH!
Thanks John
I realise that Medical Panels are not a panacea for the ills of our compensation systems, but I think the ‘Panel Model’ is probably better than the current system that applies in many jurisdictions i.e. competing IME opinions judged by a lawyer. There are challenges with medical panels too. In Tasmania, given our relatively small size, there will be challenges to find the right ‘experts’. The best clinicians are usually very busy people and for those people to allocate time to panels will be a challenge.
Medical Panels will not solve some dilemmas. The profession itself needs to sort out some of the more divisive issues, as illustrated by your case. An important issue is to try and get some consensus about chronic pain disorders, fair means of impairment assessment and legal and medical definitions of causation (to name some of the problem areas). In the occupational medicine field the ‘RSI’ dilemma still rears its head, despite the mantra that such conditions have disappeared from the face of the earth.
Peter, in some jurisdictions the determinations of Medical Assessment Panels have been decreed as binding upon all parties to a dispute. What happens when such determinations are not scientifically credible? This did happen in Soula’s case and it caused no end of problems for her.
From personal experience with the panel system as it developed in WA, my view is that doctors should stick to performing their noble duties in the medical field and strongly resist being used by society as surrogates for judges and other legal decision makers.
Peter, I wish the mantra were true sadly it is not. Those who chant it deserve a slap on the wrist (or worse) for theirs is the “culpability of carefully cultivated ignorance”. I hope that Independent Medical Examiners are not to be found among their ranks
Thank you Doctor for the work you are putting into this contentious subject, I for one with my spinal and spinal referred problems have had many differing opinions that confused and frustrated me as i am one who needs to know if a neck operation is applicable, as c6 has gone from very close to the ventral nerve route on the left now has become quite nasty with bilateral nerve root impingement so I would think after 11 years from the MVA and further deterioration of the spine that I need the mechanical help of moving the disc away from the nerves. To me this makes sense and am awaiting two neurosurgeons opinions on this matter after more cortisone injections, bone scanning etc. The symptoms are in line with the MRI results, problem being, I can expect to be sent to insurance company doctors of their choosing who will from past experience back the insurer who will not want to pay for a fusion ( multilevel cervical spine injury). I have trained myself to do 3d ( still learning) and need a career to care for my family. Sitting at the computer means in a short period of time the symptoms worsen and I must lay down to protect my neck from the increasing pain. I am left lost and do strongly believe that my spine would have been treated appropriately and promptly if I was not in the workcover system. There have been some extremely biased doctors, enough that I throw up and get extremely upset when sent to them as they act against my health interests. Other Doctors know that I have these and other injuries from my accident (multiple areas affected during an accident including violent sideon and headon impact). The WPI is greatly different from a treating doctor to a insurance prompted doctor. Including insults, diagnosis that dont add up to the symptoms etc. If we come across a person in a car accident at the side of the road, we want them to live and recover, are much relieved if they have not expired in the accident, but once insurance comes into this, the same person will go through extreme stress just trying to get help they need.
Thank you Doctor it would be wonderful if the other doctors would listen to what you are trying to say:)
Kerry, fortunately reliable evidence on outcomes following cervical spinal surgery is now available that can be used to inform you and your treating doctors as to the best treatment option(s).
Thank you John I hope to find this the case as past experiences with the workcover way of care has left me disillusioned and very untrusting of this system. Am frequently told I “fell through the cracks”, yet noone seems to be lifting me out of said cracks, and I am doing my best.
Sadly Peter, from what I’ve seen many IME’s and professionals sitting on the Medical Panels are seeming to be those moving out of practice and this is terrifying. Another is that (in my case) a Nuerosurgeon sat in on my impairment assessment knowing very well he couldn’t assess me to the best of his medical ability (in other words without the reference to the pain chapter in the AMA Guidelines).
And another issue I would add here that’s arisen from my personal experience, what happens when the Medical Panel’s practitioners get it wrong?
The more I think and experience this system, the more I’m convinced the treatment I’ve experienced is nothing short of discrimination. Those running this system need to stand up and accept some responsibility for the poor treatment they’re dishing out… in fact I’m beginning to believe I deserve an apology for the hell they’re putting me through.
Here here!!!! Soula
I was very upset to find that one of the worst and most discriminatory IME’s I had is ON THE MEDICAL PANEL!!!!! He frequently writes papers on “malingering”!!!!
All sounds good but in practice it is still the same old story. People don’t have operations unless they need them. In the real treatment world you go to a specialist surgeon who checks out your investigations etc and you make an informed decision about having the treatment. In the WC world you go to a GP then ask for a referral to a specialist, the insurer may say yes or no. If you are unlucky you have to go through a legal process. If you do go to the specialist the insurer then decides if you require an MRI. Dependent on their decision you either proceed or again you go through the legal process. If you proceed and it is found you need surgery then the insurer will send you to an IME who may or may not have treated anyone with your condition. Even though you are told the IME has to be a specialist in the treatment of your injury they are often not, or if they are, they can be known by everyone in your town to be one of those you can be lucky with but most often you are unlucky if you get him after a year on the Medicare waiting list. It is way too difficult to prove your case if you go to the HCCC but most people don’t complain as it is all just too hard. So, that knee surgeon responsible for many people limping around town gets to be your IME to decide if you need shoulder surgery because he is an orthopaedic surgeon. Then you find, even though there is a large hole in the head of the humerus that a well known shoulder surgeon says needs a bone graft, the IME says you don’t need surgery only a few weeks physio and back to work. Once you get the report, you find the IME leaves out all the information from the MRI and three treating surgeon’s reports that describe the hole in the shoulder so it looks as though there is nothing wrong. Then your surgery is refused and the legal process goes on and on and on.
Why can’t we just have the injured worker treated in the same way they are when injured outside the workplace!! The above story is sadly based on fact!! Then there are the permanent impairment assessors who just don’t follow the WorkCover guidelines or comply with the AMA 4 or 5. My husband had 28 assessments and at least seven were completely fraudulent, totally misrepresenting the imaging studies as well directing performance of standardized ROM shoulder tests in a manner other than as described including having him use the other arm to push the injured shoulder to get further movement. The scores were greater than even the treating shoulder surgeon could obtain passively, and the dynamic ultrasound that actually showed why the shoulder could not possibly reach the ROM score was totally left out of the reports. The worse thing was these were the people on the WCC Appeal panels who were setting precedents and validating their own deceit. We found on many occasions these same AMSs judged each other when their Medical Assessment Certificates were appealed against. They also performed IME work so does anyone wonder why this system is crook? We even have a letter from the insurer saying one of the AMSs was their preferred IME! The other issue is that these same assessors all work on Motor traffic medical panels. One of these was the AMA representative to the medico legal society and he spoke at a parliamentary inquiry about WorkCover. We have a letter signed by two AMSs saying how assessors who did not comply with the guidelines should be removed from the system. Both these AMSs biased,misrepresented and cheated the ROM tests. I could go on and on but the story would only be repeated.
Sadly there is a percentage of assessors who are just plain corrupt and unfortunately some of these have got themselves into positions whereby they have high profiles so people don’t question them. We have questioned them but it has taken years to have anyone listen.
Lucky there are some doctors who like you TAS doc do actually have ethics but I can’t see the day when this system will be fair on injured workers who need treatment without interference from insurers.
There needs to be a greater accountability factor. Proforma recording sheets where the scores for applicable tests are recorded and provided as the injured worker leaves the assessment, Perhaps these examinations need to be recorded and provided to all parties.The problem is at times a case where all treatment records are totally disregarded in favour of other IMEs reports that may have errors in them and the errors can be repeated, For example, one IME questioned the imaging studies and questioned whether my husband even had the acromioplasty, however the operation report the IME failed to mention described all aspects of the acromioplasty. The AMS then relied on this previous IME report rather than on the operation report and questioned whether my husband had an acromioplasty. The issue was really apparent because by that time my husband had had four shoulder operations with the last being five hours long with extensive work and very good descriptions of exactly how bad the shoulder was. The AMS just made the whole report look as though my husband had nothing much wrong and portrayed him as fraudulent.
To me this indicates good reason to provide treatment evidence without evidence from other IMEs. Insurers do provide reports selectively. In my case all the treatment evidence as well as supporting IME evidence was not provided to the IME. The solicitors also gave their own opinion in their referral to the IME which was that my injury was not work related even though there was not one scrap of evidence that it was other than work related and I had already been paid a lump sum the IME said my injury was not work related. His whole report was fraudulent with him stating I was unaccompanied. Unfortunately his staff wrote on his notes that my husband accompanied me showing up his lie. He even made my husband answer because I was having a breakdown and I couldn’t speak. There is one IME who gives prizes to insurer staff and give talks on how to get the treating doctor to change his diagnosis. The people I know who have been to him say he bullied them. He videos the session but then does not supply it. If he had to he may not be working as an IME!!
Sorry DOC, I have gone on too long. Sadly it is all true and one day it will all be exposed for the good of all.
We need the AMA to intervene as noone else will
We are pursuing these matters through the complaints systems available. We have been mucked around with delays but are compiling it all and are waiting on some replies. Just been in contact with some interested politicians and once all the complaints are replied to then we go to
the media!!!
Justice seeker, sad to hear of yet another snow job being performed on another injured worker, we need help from some honest people in power badly,but where do we find that? Why do we need american guidelines that dont work their either? Why are the icac not looking into this?
Kerrie, in answer to your question, the AMA (US) Guides were not designed with a view to their being used to determine monetary awards for permant impairment. The Australian jurisdictions have adapted them for this use. The Chapter on Pain was conveniently removed by the enabling legislation in each State. Peter will correct me if I am wrong.
Thanks Kerrie, John, Soula and Justice Seeker for all your comments. Sorry I haven’t been able to respond individually.
John is correct, the AMA (US) Guides do include a statement that they are not to be used to award compensation, but the reality is that compensation systems do need a uniform system to assess ‘impairment’. The ‘Pain’ chapter has been excised, at least in the jurisdictions I am familiar with.
Before such guidelines were developed there was very wide disparity in assessment of ‘percentage loss of use’ of a particular body part or system as a result of injury. I accept that there need to be impairment guidelines, but the guidelines do need to align with modern medical practice and have a means of assigning a rating for pain disorders. The current guides do not do that. They need to be amended, not thrown out altogether. Only the medical profession can make sure the guidelines are fair.
The thrust of my articles about IME assessments, has been to illustrate the current problems. These appear to be widespread and affect every jurisdiction. The choice for the medical profession is to be involved i.e. have input into assessment systems and decision making processes or to leave it to the insurers, financiers, employers and legal practitioners.
While there are significant divisions within the medical profession about the approach to various types of medical condition and how they are caused, I believe it is best for the doctors to be involved. I can’t agree with John’s statement:
“From personal experience with the panel system as it developed in WA, my view is that doctors should stick to performing their noble duties in the medical field and strongly resist being used by society as surrogates for judges and other legal decision makers”
John may have had a particularly bad experience with Panels in WA. I realise that Medical Panels can be chosen that reflect the bias of the person charged with selecting the panel and I also realise there are some doctors who are unfit to be involved in decision making, however I think the alternative is worse i.e. that non-medical people make decisions using medical opinions paid for to suit their purpose.
Some of the issues encountered by Soula are inherent in the impairment guidelines themselves, not with the Medical Panel process itself.
The medical profession should get its house in order, by improving the professionalism of IME assessors, promoting discussion and resolution of medical controversies and encouraging our best clinicians to participate in decision making. This is a tall order, no doubt. The alternative is more of the same – work injured people suffering unnecessarily with inadequate treatment and stigmatisation as frauds! Adding INSULT to INJURY.
PANELS, PANELS, PANELS OI! OI! OI!
Peter, I admire you for what you are trying to do. In the mid-1990s my thoughts about Medical Assessment Panels were pretty much along the same lines as yours are today. I do hope you can do better in Tasmania than we did in WA. Best wishes, John.