The Unavoidable Bias of an
Independent Medical Exam
Samuel H. Pond and Andrew F. Ruder, The Legal Intelligencer
July 28, 2015
In defending a claim for workers’
compensation benefits, the employer is
entitled to compel the injured worker to
undergo a physical examination under
Section 314 of the Pennsylvania Workers’
Compensation Act. While these examinations
are commonly known as independent medical
examinations, or IMEs, the examiner, who
ultimately testifies and serves as the medical
expert in opposition of the injured worker, is
hand-chosen by the employer and paid by the
employer. Thus, these exams are anything but
independent.
Compensation for performing these
examinations, which requires a one-time office
visit without ever treating the individual, can range from a few hundred dollars to well over $1,000.
There is no limit to the number of IMEs examiners are allowed to perform in a week, and in some
situations they conduct up to 10 exams or more on a weekly basis. Clearly, the monetary stakes are
significant. Let’s ask a common-sense question: If examiners were to find that all 10 injured workers
examined in a given week were disabled as a result of a work injury, how long do you think they would
get cases referred to them by the insurance company? With thousands of dollars at stake, it is easy to
predict what opinions will ultimately be given. Keep in mind, we are not even considering the pecuniary
interest that exists in the depositions, which in some cases can result in fees ranging from $3,000 to
$5,000 per deposition.
In addition, the employer is not confined to choosing an examiner who is located closest to where
the injured worker lives so long as transportation is provided and the travel time does not exceed
the individual’s restrictions. Given the nature of an IME, it comes as no surprise that the examining
physician often finds the injured worker to be fully recovered from a work injury, ready and able to
return to full-duty work, or that the injured employee never sustained a work injury in the first place.
Due to the fact the employee’s attorney is not authorized to attend an IME, and it is forbidden
to videotape or record the examination itself, questions may arise as to the actual length and
thoroughness of the IME described by examiners in their multipage reports. Although the employee
is entitled to have a health care provider present during an IME, the provider is restricted from
questioning or commenting on the examiner or the examination process, and is not allowed to help
the injured worker answer medical questions pertaining to the work injury. Considering the examiner
specifically instructs the injured worker that no treatment will be rendered at the outset of the IME, it
is only appropriate that judges are instructed to provide greater credence to the opinions of a treating
physician over the opinions of a physician who examined the employee for the sole purpose of
offering testimony, as in D.P. Zimmerman Jr. v. Workers’ Compensation Appeal Board (Himes), 519 A.2d
1077 (Pa. Cmwlth. 1987).
In conjunction with the history taken by the injured worker and the physical examination performed
as part of an IME, the examiner is also instructed to review various medical records that are provided
by none other than the employer itself. Examiners often form their opinions without the benefit of
reviewing all of the individual’s treatment records, including crucial diagnostic studies, in order to
truly determine the severity of the work injury. Nevertheless, once the records review is completed,
the examiner summarizes the records in the IME report, while personally choosing which portions to
include or omit. This type of discretion allows examiners to intentionally exclude certain diagnoses,
physical examination findings, and documented reports of ongoing subjective complaints noted by
various treating physicians leading up to the IME.
In the event the examiner is missing certain tests or studies to make an accurate determination as to
the extent of an employee’s injury and disability, the examiner is permitted to perform such studies
where the employer can prove that they are necessary, involve no more than minimal risk, and are not
unreasonably intrusive. However, these requests are rarely made by employers, leaving examiners with
insufficient resources to rely on in forming their opinions. Unlike injured workers’ treating physicians,
who have had the distinct opportunity of treating and personally tracking their injuries over the course
of multiple office visits, independent examiners must depend on outside records and studies as a
result of their limited time with the injured worker.
IMEs are far from independent or unbiased. IME doctors have a clear reason to deem employees able
to work. Judges must remember to place a greater emphasis on the treating physician’s testimony
rather than the IME doctor when rendering decisions. The injured worker’s primary physician may have
years of experience with the worker’s injuries and has their best medical interest in mind.