(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.