I had a recent experience worth blogging about.
A Human Resources adviser to an employer recommended that I undertake a ‘Fitness for Work’ assessment as an independent medical examiner (IME). Apparently there were concerns about the worker’s rehabilitation progress. The insurer objected, but there are differing accounts as to the basis of the objection. I was not present at the meeting where this proposal was discussed to know first hand what was actually said.
One objection apparently raised was that I might take on a treatment role. The alternative objections were that, as an occupational physician I am not qualified to assess psychological cases, that the insurer saw no reason to revisit liability or the costs of the assessment would be too great.
I want to focus on the issue of IME examiners taking on a treatment role. It is a basic issue where I would have thought the ethics were clear.
An IME shouldn’t take on treatment – but are there exceptions?
In what circumstances can a doctor engaged to conduct an independent medical assessment take on a treatment or management role? What constitutes treatment? Does a recommendation to undertake an exercise programme constitute treatment?
Here is an excerpt from the AMA document on this subject.
5.1 A doctor conducting an independent medical assessment should not provide routine treatment for the examinee. Emergency treatment should only be provided where no reasonable alternative exists and immediate referral is then made to a treating agency or treating doctor for ongoing care.
Here is a link to complete document:
AMA Guidelines for Independent Medical Assessment
Kim Uildriks, Contract Psychologist to ADF/Medibank Health Solutions recently posted an article on a related topic:
Should IME Examiners assist distressed injured workers?
The thrust of the article is that IME assessors should assist workers acutely distressed during an IME assessment. I am surprised there would be any debate about that.
Kim quite reasonably concluded:
To me, as a treatment psychologist, the prospect of not offering support to a client when they are obviously in need seems preposterous. But, could I be wrong? How would you as an IME treat someone in this situation? Would offering assistance really compromise your neutrality?
Apart from emergency treatment, I believe the only acceptable circumstance for an independent doctor to progress to a role to direct or manage treatment (or any of the other functions of a treater such as certification or prescription of medication) would be in a situation where the worker (or their own doctor) specifically requested such a course of action and there were no other practicable options to provide the necessary treatment or management expertise through another practitioner (and then only with consultation with the party that had requested the independent assessment).
While I have conducted thousands of Independent Medical Examinations over my working career, I can recall only handful of cases where I later took on a management or treatment role for the worker. A few years ago I did take on management of a worker who had suffered serious injuries in a fall from a height. I had seen the worker for independent assessments at the request of the worker’s solicitor. The rehabilitation physician managing his case withdrew from practice and asked that I take on a management role as there were no other suitable rehabilitation physicians available in Hobart. I agreed to take on that role after discussion (and informed agreement) with the worker and advising the solicitor about the change in role – explaining that I could no longer be considered ‘independent’ in any later legal proceedings.
In my experience this set of circumstances is very unusual, even in Tasmania where there are limited numbers of specialists.
I am aware that in Tasmania other doctors sometimes take on a management or treatment role after an insurer, lawyer or employer has arranged the appointment. Sometimes the role taken on is only to the extent of making a referral for an exercise programme thought necessary, but in other cases extensive and ongoing treatment has been initiated. I am not aware of what request might have been made of the doctor, but it is clear from discussions I have had with some of these patients I have subsequently seen, in some cases at least, that the doctors involved did not explain to the worker their right to choose any doctor who provides treatment.
I believe it is IME ethics ‘101’ that an IME assessor doesn’t take on treatment except in unusual circumstances, but I am not sure that is universally accepted. Is it an issue in other states? Tasmania is a small jurisdiction with limited medical resources that might be an exception.
I am interested to hear what happens in other states.
Peter, one course of action that seems obvious is for the IME to confidentially discuss aspects of treatment with the treating doctor. In fact, if I remember correctly, according to the AMA Code of Ethics, the treating doctor should be encouraged to attend the examination. However, in my limited experience, the insurer and the IME did not agree with me being present. Of course, the IME should not discuss his or her personal views on treatment with the person being examined as they may conflict with those of the treating doctor. But some IMEs cannot resist the temptation to cross this ethical boundary and criticise their colleagues, often unfairly. Finally, the advice of Sir John Collie, in his book “Fraud in Medico-legal Practice (1932) is well taken: “During an examination, a sphinx-like attitude of detachment is always the wiser course.”
I have also had a recent experience related to the matter raised in your comment. In this case I am the treater of a worker with an ‘overuse disorder’. The insurer is proposing a further IME assessment if the worker is not cleared for full duties in accord with the same IME’s earlier prediction of when recovery should occur. The IME assessor is not (and probably cannot be from a one-off consultation) aware of all the complicating factors affecting recovery. In my treating role I have had many discussions with the worker, their psychologist and other allied health practitioners involved and visited the workplace to help my understanding of the workplace dynamics. My advice to the insurer is that if they must (and I don’t see the need) have another IME assessment then it would make sense for communication to occur between the treaters and the IME to ensure the factors affecting recovery can be explained and hopefully understood by the IME. The feed back I have obtained however is that such communication might impinge on the ‘independence’ of the IME assessor. In reality, I suspect the real reason for such reluctance is that the insurer is worried that the information provided to the IME might alter the IME opinion to be more in line with that of the treater and make it more difficult to wind up the claim. In the Comcare system there is provision for IME’s to contact treaters as part of their assessment and I think it is a great idea, but unless there is a legislated requirement for that communication, I can see it just won’t happen. This is a whole subject in itself!
It would be great if the insurers would engage on social media to provide their perspective on these matters – but I am not holding my breath!
Peter, you could contact the IME directly and make a formal request that you be present during the examination for the reasons you have outlined. The last time I looked, this matter was mentioned in the AMA Code of Ethics. Should you get a refusal, and if the IME is an AMA member, a complaint could be made to the AMA Ethics Committee in your State. Hopefully, the Committee would take your complaint very seriously. P.S. I did once attend such an examination and found to my horror that the IME asked a whole series of leading questions to my patient, who was extremely anxious and was trying to please him. Needless to say, the report from the IME was scathing and biased against her. But the story had a happy ending when the IME was disbarred from practice on the grounds of his atrocious behaviour towards injured workers.
I see no issue with an IME later treating someone he/she has assessed in the past and while it might be an issue if you were concurrently treating someone while assessing them for the insurer you would have the opportunity to declare any conflict of interest before proceeding. In the NSW guidelines your own treating doctor can initially assess you if they have the appropriate WorkCover training and the insurer can then ask the treating doctor questions regarding the assessment however if they are not satisfied they can request an IME of their own. The guides actually state the insurer can only proceed to an IME if the information provided from the treating doctor in regard to any matter is “inadequate”, “inconsistent” or “unavailable” and the insurer is mandated to make a reasonable attempt at getting the information from the treating doctor before proceeding to an IME. It appears this is not how it works in practice as this mandatory section of the guides seem to be rarely followed.What seems to be the case is the injured worker’s solicitor relies on the medical treatment reports and the workers statements as this is the only evidence available to base any claim on. If your treating doctor cannot carry out a permanent impairment assessment the injured workers solicitor sends you for an IME including all the treatment evidence as it is not to anyone’s benefit to obtain an inaccurate report that would be given no weight in proceedings. The solicitors then proceed to make a claim providing the treatment evidence and the report from the IME. At this stage the insurer has the mandatory obligations noted previously which they seem to disregard, instead referring the injured worker straight to an IME of their own choosing. If the IME provides a report disputing the first IME and treatment evidence the insurer almost always immediately disputes the claim. Regardless of the actual facts of the case, win or lose, the insurer’s solicitor gets paid, so there is some incentive to create such dispute as prolonging the matter increases costs and ensures further financial gain for the solicitors. It then becomes beneficial for an insurer to rely on those IMEs who will provide a report that can be used to dispute claims. In my experience of ten assessments and those of my husband who has had 28 assessments and of those of other injured workers we know, it seems common practice that the guides are disregarded and even actively disputed in order to get you to a “preferred” assessor. In cases where we made WorkCover aware the insurer had not acted reasonably in their attempts or had not made any attempt to obtain information at all before proceeding to an IME it was confirmed by WorkCover the guides had not been followed. The issue then is that once you do see the IME there is no legal means of disputing the assessment based on the fact the insurer did not comply with the IME guidelines.
In NSW as far as I can see IMEs are used on a preferred basis regardless of the intent and mandate in the IME guides and that this has led to a devolution to the point “independence” is a word I would not apply freely to explain the behaviours of certain assessors. While I do have a letter from my insurer telling me they would no longer use a certain assessor because of what he did in my case I have no doubt if I had not predicted exactly what the would do (as evidence apparent in other cases indicates is common to him) and if I had not made many objections to seeing him and if WorkCover had not started questioning the insurer after the IME did exactly as I predicted, I would have had my claim denied using his report which gave exactly what the insurer requested. I happened to obtain a copy of the referral to the IME showing the insurer’s solicitors gave the IME their own opinion indicating they wanted him to provide which was contrary to all other evidence in my file. Not just questions regarding my medical conditions but statements encouraging him to find my injury was no longer work related. My complaints ensured the insurer just could not use the IME report as it was all too obvious what had gone on. The insurer also advised they would review their practices in regard to the use of IMEs and named another assessor they would no longer use but then informed they would put out “tenders” for new IMEs! Just what, may I ask would the tender process for obtaining an IME involve? I would like to see the process for that, considering the costs are determined by the legislation on a case by case basis and the new legislation is more prohibitive for injured workers than for insurers. What would the criteria be to distinguish who would win such a the tender? Doesn’t this indicate more than an “independent” arrangement? I can just see the advertisement in the medical journals-(tongue in cheek)-“We would like applications from IMEs or Medico legal companies who are willing to completely disregard all ethical behaviour in order to provide us the report we suggest you provide if you want ongoing work!” My psychiatrist tells me he does read adds in the medical journals though perhaps not as obvious as my version but enticing enough with such benefits as “No insurances”, “Office space”, “Flexible hours”, “Office staff”. I just want to know how costs can then be allocated according to the legislation to a medico legal company running a big office of many cubicles? My husband attended one of these companies to see an Approved Medical Specialist in his “independent” role serving the Workers Compensation Commission. This obviously told us he had an alternate role working for a medico legal company who obviously had won the “tender process” to provide IMEs for an insurer.
As you are one of the ethical IMEs you would most likely be aware of such matters so how would you best deal with the issue of this type of thing and how do you view this?
We have evidence from one insurer stating they use a particular IME on a “preferred” basis as the IME is also an AMS (Approved Medical Specialist) working directly for the Workers Compensation Commission where he is “conclusively presumed to be correct” under the legislation. To me this demonstrates not only a less than “independent” relationship with the insurer but also the possibility this relationship could influence his work with the Commission and with consideration (under the new legislation) injured workers in NSW can only make one claim for a lump sum assessment and whatever percentage the AMS determines for permanent impairment is the percentage that then determines a worker’s rights in regard to both weekly benefits and medical benefits and there is no right to further assessment if the injured worker further deteriorates, it is very concerning that there is no significant oversight of such matters.
As far as I can see it is entirely up to the IME who performs any assessments to maintain their own integrity regardless of who refers the injured worker to them. At the end of the day you will know if you are regularly getting referrals from either one side or the other expressing the view of the solicitor and if they are attempting to influence your thinking and you will know how you act when this is apparent. Have you found any examples of either side attempting to influence you?
It is good for ethical doctors to speak out in such matters as injured workers find it very difficult to be heard in this regard. Under NSW Solicitors Rules, solicitors are not legally allowed to exert influence on the evidence of an “expert witness” so it would be interesting to know just what the experiences of IMEs are in this regard.
I feel it would be difficult for an IME to ensure they remain totally independent under the circumstances where the IMEs income relies on the referrals they are sent and if an IME develops a “preferred” relationship with either side. I would be interested to hear your view on this and whether you actively monitor this so that you recognize at in any point in time where you may have failed to realise such influence is occurring. There is such a thing as “unconscious bias” so I wonder how much influence this can have on an IME when there is financial benefit to providing favorable reports under the circumstances above.
What is your experience in this regard and what do you know of the experiences of other IMEs? Would you favour blind referrals where the IME does not know who the referrer is? This could be routed through some WorkCover central control with the reports provided electronically back to WorkCover to be forwarded back to the referrer. Would such a system be able to work?
It would be good to have everyone on the same page about what the best option is for maintaining independence, keeping in mind the definition of independence being “free from influence”.
Thanks Justice Seeker
That is a very long comment, so where do I start? Perhaps with a long-winded response!
I am not familiar with the detail of NSW WC legislation and it strikes me that your system is much more regulated that it is here in Tasmania. We have a privately underwritten scheme and so each private insurer interprets the legislation a bit differently. There is no regulation of fees charged by IME’s and the only stipulation about doctors charging for treatment is that they don’t charge any more than they would for non-WC patients. There is only accreditation in Tasmania for doctors in 2 areas.
1. you need to be accredited to issue a WC certificate i.e. all doctors who treat WC patients need that accreditation, but there are no real difficulties to obtain that accreditation – just apply. This accreditation system may well be abolished soon!
2. If you do impairment assessments you need to be appropriately accredited for that purpose
There is no accreditation for IME assessors and no Approved Medical Specialists in our scheme. There are no legislated standards about IME practices or how or when IME opinions are used except the legislation does apply some limits to the numbers of IME assessments and stipulate that the IME reports must be provided to the treating doctor.
From your comments it would seem, despite more regulation in NSW, there are still many problems with independence of IME’s. Perhaps that reinforces the importance of medical (and insurer) ethics, rather than just trying to regulate!
I agree that tendering for IME assessors by insurers would not seem to encourage independence.
In Victoria I understand they have adopted a system where IME assessors are jointly appointed by both sides and I believe that process has merit. I think Medical Panel systems have merit, but again, in Tasmania although there is legislative provision for panels they have been rarely used in practice for variety of reasons.
In principle, the idea of ‘blind referrals’ is a good idea, but I haven’t heard of any jurisdiction where that has been to put in place.
You have asked whether I have had the experience of one side or the other trying to influence my opinion. The answer is ‘yes’ but the influence is often subtle and rarely openly stated. Perhaps I should give an example from the distant past, if my memory serves me. When I first went into private practice as an occupational physician (before that I had worked within an organisation as a medical practitioner) I introduced myself to one of the major insurers and offered my services to provide medical advice to assist them to manage claims. I recall that the claims officer agreed to use my services. I can’t remember the details of the first case referred to me, but I do remember that they did not like my opinion and they made that clear. I didn’t see any reason to change my opinion and never received any more requests for my opinion. Was my opinion reasonable – probably yes.
Was it what the insurer wanted – probably no. That is the sort of thing that happens.
The insurers would probably say that I now have a ‘preferred relationship’ with plaintiff lawyers. I have never done any marketing for IME work (except recently when I have employed another doctor in my practice) or tendered for IME work. I have no contracts for IME work. I still do get work from insurers from time to time, but the fact that most of my work comes referred from other doctors (to treat complex cases) and from plaintiff lawyers (for IME assessment) is just how my practice has developed, my opinions are seen to favour injured workers, but I would say they mostly reflect the reality that is not favourable to an insurer who underwrites the cost of a claim. If you analysed the outcomes of cases I have been involved with, where a judicial decision has been made, I feel confidant that, in most instances my evidence has been accepted over that of opposing doctor’s opinions. Lawyers who seek my opinions tell me they feel confident to use my opinions to argue cases that will go to court. My experience of doctors that preferentially provide opinions for insurers is that their credibility before courts has a limited lifespan. After a few critical judgements the lawyers stop seeking their opinions. I think that tells a story!
I agree the objective of ‘independence’ as ‘freedom from influence’ should be the aim. It is clear that our current systems are far from ideal. We are all subject to biases, including unconscious bias, but the best way to minimise bias and enhance ‘independence’ is bring the issue into the open and support ethical behaviour by both IME doctors and those organisations that request IME opinions. Legislation and accreditation might help too, but is not the total answer.
I just re-read my post above and apologize for leaving out the odd word or punctuation mark but I guess you get the gist of what I am saying.
I also thought about the fact that many injured workers see all IMEs in the same negative light due to the actions of the few unethical ones. In my view this makes it more imperative that we all do what we can to expose unethical behaviours so the system can be cleared of those who do not deserve their role and importantly, that we also congratulate doctors like you and John who have the courage to maintain your own integrity.
Thanks for your efforts!!
Someone once told me that good ethics is only good manners, of which there is precious little in the arena of disputation that exists in workers’ compensation jurisdictions. The situation you describe is absurd and will be oft-repeated until such time as conflicting medical opinions can be tested in a Court of Law. But as has happened in New Zealand in relation to upper limb pain syndromes that arise in the context of repetitive manual work, the Law can get it wrong when it has to rely upon conjectures that have been presented to it in the guise of established knowledge.
Thank you for your encouragement!
Peter, I have probably said it a few times before, but yours is a unique and much-needed forum for raising and discussing these thorny issues. Congratulations!
Thanks John I hope I am raising the real issues – the problem is those people in positions of power and influence might still not be aware or contribute to these discussions
Thank you to both Peter and John for your valued opinions. I agree it is the ethics of the doctor that counts in the end. Sadly the manner the system has devolved in NSW with either the lack of oversight or “closing a blind eye” to such practices undermines the whole concept of the injured worker having a fair and accurate assessment of their injuries consistent with the history and treatment evidence. When you read an IME report that is contrary to years of consistent treatment evidence it certainly shows something very wrong, but worse, is the treatment injured workers get when they try to raise such issues.
I found to my dismay that pointing out the logical errors contained in many of the reports penned by “independent” medical examiners is a complete waste of time. But to my dismay, I have since found that much of what appears in the peer-reviewed medical literature published in my area of expertise (Pain Medicine) is similarly flawed. What hope, if any, does an intelligent injured worker have in trying to point out some of these things to a sphinx-like statutory regulatory body?
Thank you for this subject being brought up. Personally I think that the government should never have made insurers their agents in the first place. It is a complete conflict of interest to give the care of injured workers into the hands of a large business based on profit. Insurers are well known even in other areas, car theft or house fires etc they always try their best to not pay or to reduce the payout as much as possible. Giving large bonuses to claims officers for kicking people off the books should also not be allowed. To put a body such as insurers in charge of the care of injured workers while trying to continously fight liability means that for us it feels like a wolf tending sheep, their wants are always first, they have money and power and they crush people for it.
Without their preferred and favourite “I”MEs they couldnt rip us off, stop treatment that is needed, keep people from needed operations etc, this problem that isnt being dealt with is causing people great harm. People who cant work anymore or not enough to support their families are really in big trouble. There are people losing their homes, partners, the lot, people are killing themselves due to this workcover stress. Many of us will end up in poverty, very cruel way to deal with people who were unlucky enough to get hurt.
Apart from my injuries I developed PTSD. My sister and I went through a massive accident which included sideons, headon collision, lots of spinning with the car leaving the ground repeatedly
where I felt most of the damage done to me from being smashed repeatedly and violently into the car ceiling and smashing terribly hard repeatedly into my sister, we thought we would go over the bridge on the last hit, expected to die and shocked that we didnt. Just smashed heavily into the concrete barricade where both my knees got smashed with my patellas knocked out of place.
Well the insurer didnt like that diagnosis so they have inconsistantly prepared reports with all kinds of diagnosis from adjustment disorders to mood disorders to a chronic depression and anxiety disorder with panic attacks. Other insurers doctors have tried to call me a liar in the reports or try to make out it is something else causing me distress, BUT FOR the accident coming home from work I would not be living with any of these symptoms, I was healthy, fit doing well and starting my own business when not working for the nursing home, I decided at the age of 3 that I would grow up to be an artist so airbrushing cars, murals etc was so important to me. WIth radiculopaty still untreated I cant do it, that is a huge loss to me! I am very frightened driving on highways or driving over 80 kms per hour. I still get flashbacks, I have dreams about being in car accidents, when I drive and someone is doing something dangerous or silly I actually see and accident happening in my head even though it isnt there. All this has been exacerbated by the continous fight with the insurer and the lack of insight by government legislators. So I think my first psych was right about PTSD. The insurer will never agree with that though.
SInce the accident any time an mri shows problems from the accident they refer me for psych instead of dealing the physical problems that are driving me up the wall. I have radiculopathy among other things with multiple injuries proven, but I am still after 12 years being messed with. I dont think that I will ever get my operation, and that causes me great distress, I am so sick of pain and numbness, I am very dismayed at this system, it is not the system our forefathers fought to put in place. I try very hard to adjust, I have taught myself photoshop and am learning zbrush which is an application that produces 3d art for movies and videogames etc at my own cost not helped by the insurer but even drawing with a mouse on the computer is getting too hard as my radiculopathy is worse, so any work takes way too long compared to an able bodied artist. I feel like a surgeon who cant anymore reliably use their hands without shaking, who would want to be operated on by someone with that problem?
If anyone wants to look at what I have taught myself below is a link to my skydrive with some of my artworks if anyone is interested. Thanks again for your thoughts as they are fair and decent and people like me lose faith in medicine due to insurers’ “preferred” doctors so hearing from doctors with ethics is important. Thanks once again and sorry I rambled so long. http://sdrv.ms/10gzC8f
In my job I hear far too many stories like yours. The only person you can truly rely on to act in your best interests is you. Keep up the graphic design efforts.