Independent Medical Examinations (IME) In Long Term Disability Claims

What is an Independent Medical Examination?

First of all, we don’t like the use of the term “independent” when referring to a medical examination ordered and scheduled by a long term disability insurance company.  An independent medical evaluation (IME) is an exam conducted by medical professionals that are not associated with your case currently. The word independent is in quotes as we do not believe most of these physicians are really independent. We prefer to call these exams “Compulsory Medical Exams.” These exams are meant to be impartial, but some insurance companies hire the same doctors repetitively because they tend to write reports in favor of the insurance company. 

Do You Have to Attend the IME?

A common question we are asked is whether you must attend an IME upon request of the insurance company. The answer is: “It depends on what your policy says.” Your duties and obligations will be set forth in the insurance policy.  If it says you must present for an exam upon request, then you must do so.  If it does not have such a provision, then you may not have a contractual obligation to go to the exam. I can tell you that most policies do have such a provision, however. 

Thus, you should carefully review your insurance policy to determine whether you must go to this doctor.  If you have a clause in your contract that says you must “cooperate” with the insurance company in its investigation into your claim, and you fail to “cooperate” by not going to a medical exam, then you may be denied benefits for your refusal present for the medical evaluation. If you are asked to submit to multiple IMEs, it is within the insurance companies’ legal rights to request them.

What Happens Before an IME?

In addition to using a biased doctor against you, you should expect that the insurance company will hire an undercover surveillance private investigator to film you. You should expect to be recorded anywhere from a few days before the day of your examination up to a few days after the examination. The investigator will be waiting outside your home to keep watch on you and record your every move during these times. So, just keep in mind that all of your activities during these times will be taped and held against you. Highlights from these recordings will be provided to the evaluating doctor who will then make additional blanket statements, such as stating that your activities “were in excess of your stated abilities.”

What Happens During an IME?

In almost every case, our clients tell a similar story of how the IME was conducted. The examination is usually a cursory affair- the physician conducts a minimal interview and takes a short history from the claimant, which is then followed by a quick “once over” check of the claimant’s medical condition, and then the IME is over. The doctor will not administer any medical treatment and does not want to find any problems; in fact, the defense physician wants to make sure not to find any evidence of your disabling condition. Always remember – the defense physician is not concerned about your well-being at all; the IME doctor is more concerned about the well-being of his or her bank account.

Just read the doctor’s final report. It is common for the defense examiners to go beyond the objective medical evaluation process and attack the credibility of your claim. You are likely to find words and phrases such as the following in the medical records:

• “complaints are excessive for condition demonstrated”;
• “symptom exaggeration”;
• “secondary gain”; and
• “malingering”

The purpose of using this language is clear. The doctor intends to make the claimant look dishonest, which is easier to do than undermining the actual findings of the treating doctors.

Expect the IME examiner to watch you walk back to the parking lot after the examination (or claim that he or she did so) to try and find evidence of malingering. We have found that there is a doctor in just about every community that will perform IMEs that favor insurance companies. However, especially in more rural areas, the insurer may not have a local doctor available to do their dirty work. In such circumstances, the insurer may schedule the claimants to attend examinations hundreds of miles away. Or, the insurance company may even fly a doctor in to defeat your claim.

Can I Record My Independent Medical Examination?

You should make sure you are prepared for the IME, and you should consider documenting or recording the examination, although the examiner may not like this. It is important to have a record of what questions the doctor asked, how long the exam lasted, and whether any tests were performed.

Types of IMEs and How to Prepare

The Neuropsychological Test

Of all the IME types, the neuropsychological exam is the most overused.  It uses scientific tests to measure the brain functions from simple motor function, problem-solving, and reasoning skills. Then, the results are compared to “normal” test results. The most important thing to remember is this test measures the brain’s present level of functioning.

Most common neuro-psych tests exam the following:

• Attention and processing speed
• Motor performance
• Sensory acuity
• Working memory
• Learning and memory
• Abstract thinking
• Mood & temperament
• Intelligence
• Language
• Calculation
• Vision analysis
• Problem-solving
• Judgment
• Executive functions

A neuropsychological evaluation is a test given to the claimant to detect suspicious activity. The assessment also looks for bias and malingering (exaggeration or fabrication.) A well-known test for malingering is the MMPI-2 (Minnesota Multiphasic Personality Inventory), and it is requested by insurance companies often. Other common exams are the Beck Depression or Anxiety Scales which measure depression and anxiety levels, The Bender Visual Motor Gestalt test, which looks for signs of brain dysfunction, emotional problems, and brain development maturity. A test for patients with suspected dementia is the Dementia Rating Scale, which assesses the claimant’s overall brain functioning and memory levels. Likewise, the Halstead Category test measures overall brain function for claimants not suspected of dementia.

Of course, there are many more tests that can be used based on claimants’ history and suspected disability. These exams are usually interpreted by in-house (insurance company), neurologists, and psychologists. It is common for these professionals to lean toward the side of the insurance company since they are the ones paying them. These tests can be very subjective and rely heavily on the evaluator to interpret the results. Although testing can be appropriate for some disabilities, using neuropsychological testing alone to exam disorders like depression and anxiety is not appropriate.

The raw testing data that is used for the analysis should stay with the psychologist performing the testing and should never be included in your disability file. Only the report of the findings should be in your disability file. Insurance companies have been known to put the raw data in claimants’ files and have an unqualified person such as a registered nurse or primary physician make assumptions based on the raw data. If you find out from the insurance company that someone other than a psychologist is making recommendations based on your data, that is a red flag and should be reported to your attorney.

Functional Capacity Examinations

Although the functional capacity examination is a significant part of the disability claim process, they are not always the best for the insurance company. In fact, 40-60% of FCE is in favor of the claimant as opposed to only 10% of psychological exams in favor of the claimant.

This is because when you are dealing with a physical injury like bones, feet, hands, and back, the examiner is a trained occupational therapist. They usually provide very objective, accurate, and verifiable results. This does not make the insurance companies happy. They prefer more subjective testing that can be swayed in their favor.

Functional capacity tests measure how much weight you can lift and carry, your range of motion like reaching and bending, and fine motor skills like grasping a pencil, or pinching small items to pick them up. Depending on what line of work you are in, you may also be tested on your ability to crawl or climb stairs. There are four rating options: sedentary, light, medium, and heavy-duty. You will be assigned a list of restrictions or limitations that you cannot do, or that you can do that follows the rating options. The IME examiner will also make a notation as to if they feel you are giving your full effort.

Psychiatric and Psychological Testing Conclusions

The purpose of psychological testing is to give you a rating on the AXIS scale and GAF scale. The GAF is a global assessment of functional rating. The GAF scale measures how well you are handling problems in living socially, emotionally, and occupationally. It has been around since the 1960s, and in 2013, it was dropped by the manual of psychiatrists and replaced with a rating scale developed by the World Health Organization, but insurance companies still use it and will probably not change anytime soon.

Here is the GAF Rating Scale:

The average person lives somewhere between 60-80 on this scale. Below 60 can be an indicator that there is a problem. The IME examiner is the one examining the rating scale so they can have their own interpretation of what is considered in the normal range.

Claimants can also have an Axis diagnosis. The Axis Scale has four levels:

Axis I – Clinical Primary Diagnosis

Axis II – Personality Definition

Axis III – Physiological any organic problems that may be present

Axis IV– Social- Loss of a loved one, sexual abuse, divorce, career changes, etc

Again these results are interpreted by the insurance company, but they usually lean toward the insurance company only 50% of the time. This can be a good thing for you.

Tips For Your IME

 Tip #1: Bring a Friend

During an independent medical exam, you will be pushed to your physical limits, which can cause you agitation. It’s good to have someone with you to help ask questions, take notes on what the doctor is doing during the exam, and be your advocate. Having another person in the room also prevents the doctor from being intimidating or rude. If you don’t have someone to bring with you, bring a video recording device to record your exam. Many times the IME report will contain information that may have been taken out of context by the examiner. Have proof of what was discussed in the session.

Tip #2: Do Not Exaggerate Your Symptoms for the Exam

You will likely be under surveillance before and after your IME. So don’t walk into your exam with a cane if you don’t regularly use one. Read about the four types of surveillance here.

Tip #3: Don’t Fill Out Any New Paperwork During This Exam

By the time of your exam, your medical file should have been reviewed by the doctor. Don’t be rude, politely decline. You don’t want them to use this paperwork against you at a later time.

What Happens After Your IME?

IMEs are usually conducted by medical experts that are paid by the insurance companies. These doctors want to keep receiving payments from the insurance companies, so it is in their best interest to write a report that is in favor of the insurance company. Some disabilities are easier to prove than others. An IME report can be very subjective based on the expert performing the evaluation.

Do Independent Medical Examination Doctors Lie?

Insurance companies may pay thousands of dollars for an IME report. Many of the doctors who perform IMEs for disability insurance companies make a substantial portion of their income from IMEs. They are familiar with disability insurance terminology and use their familiarity with the process in an effort to please the insurer and keep the examination payments coming. We have found that these examiners will not hesitate to ignore their professional training and make sweeping statements to defeat your claim. They know what is expected of them and that is what they are paid to do.

There is nothing “independent” about this exam. If you believe that the insurance company has chosen the particular doctor performing your examination because they believe the doctor is “fair,” then you are being naïve. The fix is in on the examination. The medical examination will be conducted by a doctor who is frequently used by the insurance company to conduct medical examinations.  The insurance carrier is not going to pay good money for bad results. Insurance companies use the same examiners time and again in each community to get what they need: medical opinions to use to deny your claim. In short, the results of these exams tend to be in favor of the insurance companies.  As such, we request that they are called “Defense Examinations” or “Compulsory Medical Examinations”; there is nothing “independent” about them.

Tips For You Once You Have Completed Your IME:

Tip #1: Request a Copy of Your Report Before Discussing It

The insurance company may provide you with a copy of the IME report upon request; however, you have no absolute right to receive a copy of the report until after your claim has been denied. If your claims adjuster calls you to discuss your IME, refuse to discuss it until you have a copy of your report and time to review it.

Tip #2: Point Out Inaccuracies

Don’t be afraid to point out inaccurate information in the report. Use data from your medical file to support claims.

Tip #3: Ask About the Relationship Between the Medical Professional and the Insurance Company

Request in writing the following from your disability adjustor:

1. How many referrals have the doctor received from the insurance company for the last five years?
2. How much compensation has the doctor receives per IME?
3. Is the doctor that evaluates you a specialist in your disability?

Tip #4: Have Your Doctor Review the IME

If the doctor writes a very unfavorable report, request your doctor review the report and make notes of the inaccuracies. Your treating doctor’s opinion may outweigh the opinion of the IME doctor, but this service is expensive, so consult a disability attorney before you go this route.

By the time of your exam, your medical file should have been reviewed by the doctor. Don’t be rude, but politely decline. You don’t want them to use this paperwork against you at a later time.

What If My Long Term Disability Claim is Denied after an IME?

If you are denied long term disability benefits, and the insurance company cites your IME as the determining factor, you need to consult a disability attorney. This is not the end of your case. A disability attorney can hire medical experts to conduct another IME on your behalf and hire vocational experts to support the fact that you cannot work. We will also work to obtain statements from your doctors disputing the IME report. You usually have 180 days from the time you are given the notice to appeal your decision, but this varies depending on the terms of your policy.

Nick Ortiz, the experienced long term disability attorney at the Ortiz Law Firm, can help you through every step of the process, from initial application to potential appeals. He will only get paid if you win your case. You can seek help without worrying about upfront costs or unexpected bills. Our legal team focuses on your case so you can focus on your illness.

The Ortiz Law Firm has successfully represented people in disability cases across the United States. An experienced long term disability attorney can help you understand your contractual obligations and assist you in preparing for this medical examination.  We offer free consultations with no obligation to use our firm. We will review your case and answer any questions you may have. If you would like to speak with an experienced long term disability attorney, please contact Nick Ortiz at (888) 321-8131.