by David F. Stern, Partner
Attending one or multiple Defense Medical Examinations (DME) is a component of nearly every workers’ compensation claim. The industry also refers to these evaluations as Independent Medical Examinations (IMEs); however, this is a misnomer. They are anything but “independent.”
Many of the physicians that perform these examinations do so on a regular basis. These doctors often derive a substantial income stream from this work. The examinations and preparation of a report are billed at up to $1,000 per evaluation. If the doctor is called to testify, the deposition fee can be between $3,000 and $6,000 per. Clearly, if this is done routinely, the revenue can add up very quickly. Since there is a monetary component, the process is loaded with bias and misplaced motive. Employers and insurance companies will not continue to give business to doctors that consistently issue opinions that are unfavorable to these companies. Hence, these examiners know that they will only garner more work if a high percentage of their reports contain opinions that benefit the pay source, i.e., the employers and insurance companies. This is not say that all the doctors that engage in this practice allow their opinions to be swayed by money. However, many of them do.
By law, the employer/carrier can obtain a DME every six months. However, that is not a hard and fast rule. If there are multiple injuries, e.g., orthopedic and neurologic, sometimes two evaluations every six months are permitted. If the case is in litigation, perhaps a new DME will not be permitted, even if six months have gone by. There are numerous complexities to the timing and allowance of these examinations and it is recommended that you consult with our firm when questions arise. There are also rules about what can take place at the evaluation – depending on the procedural status of the case, the doctor may be permitted to evaluate one body part, but not another. Laws also exist about what type of testing is permitted at the appointment.
Even though there is an inherent bias and a doctor-patient relationship is NOT being established at a DME, I always instruct my clients not to view it as an adversarial process. That just results in unwanted stress and potential miscommunication in the examination room. I advise my clients to be truthful and allow the doctor to perform his/her evaluation. Being cordial and a good historian can only help with the process. There is no requirement to bring any medical records or studies to the examination. Simply appear for the appointment as you would any other doctors’ appointment. We do recommend vigilance. Take note of how long the doctor questioned you. Take note of the length of the physical examination. If someone other than the doctor, such as a nurse, resident or physician’s assistant, performs either component of the DME, write this down. If there are restrictions in terms of what the doctor can examine and what cannot be examined, we will arm you with this information in advance.
An injured worker is free to bring a family member with them to the DME. The evaluation cannot be videoed or tape recorded. The employer/carrier is responsible for providing transportation to the appointment if you require this. If not, you are entitled to be reimbursed the IRS mileage rate for your commute to/from the office.
Do not plan on seeing the doctor’s report in short order. It typically takes four to six weeks for the report to be generated to the Defendant and turned over to you and/or our office. Most importantly, do NOT panic when you get the report. It is human nature to receive this report and think the worst when you read the doctor’s conclusions. It is very common for the doctor to inaccurately record your history or physical examination findings. It is also common for the DME physician to tell you one thing in the examining room but then write something completely different after he/she looks at medical records. This is all par for the course. Remember the bias/motive discussion in the first paragraph above. Take a deep breath and remember where this doctor is coming from and who is paying him/her. Recall that your treating physician(s) will have another side of the story to tell. Your voice will be heard in court and you can correct the inaccuracies.
Do not forget – we are here for you through the entire process and can answer any questions that arise in preparation for the DME or once the report is received. It is part of a workers’ compensation claim and we are adept at steering you through it.