Insurers Are Misusing IMEs to Prematurely Cut Off Injured Workers’ Benefits

IMEs in workers’ compensation cases generally

Under Section 314(a) of the Act, “[a]t any time after an injury[,] the employe[e], if so requested by his employer, must submit himself at some reasonable time and place for a physical examination . . . by an appropriate health care provider . . . who shall be selected and paid for by the employer.” When a worker refuses this request, the Act provides a remedy: an employer can petition a WCJ to order the worker to submit to the examination. A WCJ can order a worker to further examinations, when petitioned by an employer, as the WCJ “deem[s] reasonable and necessary.”

When a worker refuses or neglects to submit to an IME in the face of a WCJ’s order “without reasonable cause or excuse,” a WCJ can suspend their workers’ compensation benefits for as long as the worker refuses or neglects to submit to an IME. If the worker had not yet received benefits, the benefits that would have been payable to them during the period they spent refusing or neglecting to submit to an IME in defiance of a WCJ’s order would be deducted from the total benefits payable to them.

Employers’ and insurers’ misuse of IMEs in workers’ compensation cases

Increasingly, employers and their insurers are using IMEs as a tool to both short circuit the commonwealth’s workers’ compensation process and exert increased control over it.

Taking advantage of the Act’s ambiguity as to when an IME can be scheduled, employers and insurers are requesting injured workers submit to an IME while they are receiving treatment under a Notice of Temporary Compensation Payable (“NTCP”). After a physician (from a panel assembled by an employer) diagnoses a worker’s work injury, and the worker qualifies for workers’ compensation benefits, they would receive them under an NTCP, which details the worker’s benefits. Once issued, an NTCP gives an insurer 90 additional days to investigate the claim and determine further compensability.

When those 90 days elapse without any further action from the insurer, the NTCP becomes a final Notice of Compensation Payable (“NCP”). At that point, insurers are locked into paying ongoing benefits to the injured worker until they’ve returned to work or the insurers move to reduce or end the benefits they’re paying.

Seeking an IME within the 90-day NTCP period is an improper use of an IME. By forcing injured workers to submit to an IME within those 90 days, employers and insurers are attempting to prematurely cut-off an injured worker’s treatment. By securing an opinion from a physician they’ve selected and paid for that there is no injury or that the injured worker has fully recovered from the injury, an employer or insurer can end their obligation to pay ongoing benefits before that obligation becomes final.

These improperly timed IMEs also allow employers and insurers to exert more control over the workers’ compensation process than they already have. As we alluded to above, to ensure that the carrier pays for the worker’s medical treatment, the Act already requires workers to treat with panel physicians selected by and paid for by their employer within the first 90 days following the injury, assuming the employer has met the legal requirements that allow them to force an injured worker to do so (which many, if most, employers do not meet).

IMEs during the 90-day NTCP period give insurers an improper “do-over” by allowing an employer-selected and employer-paid doctor (i.e., the IME doctor) to contradict the diagnosis that an earlier employer-selected and employer-paid doctor (i.e., the panel doctor) provided. In these cases, it appears the carrier is searching for a reason to deny a case despite there already being sufficient evidence to support an acceptance of liability.

Compounding the harm caused by the misuse of IMEs, when injured workers do not attend IMEs during the 90-day NTCP period, insurers are violating the Act by denying those workers’ compensation claims outright instead of pursuing the appropriate remedy: seeking motions to compel them to submit to an IME. Our hunch is that employers and insurers are doing so because they know any motion to compel would rest on flimsy reasoning that WCJs would be unwilling to grant.

The impact of misused IMEs on injured workers

Usually, IMEs are conducted after an NCP has been issued in order to generate evidence that an injured workers’ benefits should be reduced or terminated, or to generate evidence that provides leverage for settlement discussions over contested workers’ compensation claims. When IMEs are misused, injured workers feel the pain.

First, they may be forced to submit to invasive and unnecessary medical exams. Second, they may be forced to submit to those exams despite their own counsel advising them not to attend. Third, when they do not attend an IME, and their employer or its insurer does not seek the appropriate remedy (i.e., a motion to compel) but instead cuts off their workers’ compensation benefits, they are forced to have to litigate their workers’ compensation claim—which could take months—while they struggle to make ends meet if they’re too injured to work and earn wages. We also cannot ignore the fact that the misuse of IMEs is happening shortly after a work injury occurs―when many injured workers are not yet represented by counsel and are at an extreme disadvantage with respect to workers’ compensation claims.

Ending the misuse of IMEs

WCJs could, on a one-by-one basis, halt employers’ and insurers’ misuse of IMEs by issuing court orders that prevent IMEs from occurring within the 90-day NTCP period, prevent employers and insurers from denying injured workers’ claims when those workers do not attend an IME within those 90 days, and subjecting employers and insurers to penalties when they issue such a denial.

But the more effective approach would be for the Pennsylvania General Assembly to amend the Act to nip this misuse in the bud. Amending the Act to clarify that (i) IMEs within the 90-day NTCP period are prohibited, (ii) employers and insurers cannot deny a workers’ compensation claim or end a worker’s workers’ compensation benefits for not attending an IME during those 90 days, and (iii) employers and insurers are subject to a significant penalty if they deny a worker’s claim or end their benefits because a worker did not attend an IME during the 90-day NTCP period, would end this misuse of IMEs.

A weapon improperly wielded by employers and insurers

No workers’ compensation claimants’ attorney should be surprised by employers’ and insurers’ efforts to pervert the intent behind IMEs and turn them into a weapon to be used against injured workers while their wounds are still fresh—literally. But their lack of surprise should not minimize their concern or their desire to disarm employers and insurers.

Employers and insurers will not voluntarily stop weaponizing IMEs. WCJs may be the first line of defense for the commonwealth’s injured workers here, but only the General Assembly has the power to put an end to this loathsome practice.

Ryan D. Tilley and Taylor Trusky are workers’ compensation attorneys at Pond Lehocky Giordano LLP, the largest workers’ compensation and social security disability law firm in Pennsylvania, and one of the largest in the U.S. They can be reached at rtilley@pondlehocky.com and ttrusky@pondlehocky.com, respectively.

Reprinted with permission from the November 8, 2024 edition of The Legal Intelligencer © 2024 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.