Soon after deciding to controvert a claim, the carrier will likely be presented with the question whether to have the claimant evaluated at an Independent Medical Examination (IME) by a carrier consultant.

The aim of this article is to help answer that question by looking at the underlying reasons for the carrier’s denial in the first instance and other claim facts and circumstances, so that we can make an informed defense decision whether to have the claimant evaluated by an IME, or not, and put ourselves in the best position to defend the claim.

No matter what your jurisdiction, carriers have certain defenses that they can raise to deny a workers’ compensation claim. For our purposes, these defenses can largely be classified into two separate groups: legal defenses and medical defenses.

For example, in New York, carriers are provided with the following eClaims denial codes and their corresponding traditional C-7 denial equivalents:

Any denial codes referencing “causal relationship” (2C, 2D, and 2E) are best categorized as medical defenses, and all remaining denial codes are best categorized as legal defenses. Now that we have our two categories of claim defenses, we can then objectively look at our specific claim, identify our specific defenses, and determine whether an IME is needed given our particular circumstances.

Any controverted claims involving medical defenses may or may not necessitate sending the claimant to be evaluated by an IME and largely depend on the strength of the claimant’s own medical evidence. If the claimant does not have sufficient medical evidence or a finding of prima facie medical evidence, or if the claimant’s medical evidence is weak and/or easily rebutted, then an IME is generally not needed or recommended.

The burden of proof in the first instance remains with the claimant to produce competent medical evidence of causal relationship to establish their claim. As carriers defending claims, we never want to unintentionally open the door for the claimant or make the claimant’s case for them by producing an IME report on causal relationship that is not needed and can only hurt us by drawing conclusions for the judge to rely on that the claimant’s providers didn’t or couldn’t draw.

Alternatively, where the claimant has been found to have prima facie medical evidence of a work injury and/or where the claimant’s medical is strong, then sending the claimant to be evaluated by an IME is almost always recommended, unless there is some strong legal or statutory reason that renders the claimant’s medical opinion moot and the claimant’s claim null and void.

Instances where the claimant has reported the claim untimely or has filed their claim untimely are situations where the carrier may consider waiving its right to an IME, despite the claimant having prima facie medical evidence of a work injury. The analysis goes further in that the defense then must evaluate what exceptions may apply to any legal or statutory authority relied upon and how likely it is that the specific presiding judge will find said exceptions to apply.

Finally, regarding controverted claims involving strictly legal defenses, sending the claimant to be evaluated by an IME is generally not needed or recommended, unless you want to try and safeguard and hedge against a specific issue should the claimant’s claim ultimately be established. An example of using an IME to hedge would be sending the claimant to be evaluated by an IME consultant or having an IME record review done solely on the issue of degree of disability in order to protect against any protracted healing period (PHP) and/or mitigate awards for lost time should the claimant’s claim ultimately be established.

The initial decision of whether to send the claimant to be evaluated by an IME is straightforward but can be more nuanced depending on the specific facts and circumstances of your claim. Carriers, insureds, third-party administrators (TPAs), and defense counsel are encouraged to work together at the initial outset of a claim to determine whether to accept or controvert a claim, and what denial codes to use if controverting or denying a claim. If denying a claim, defense can then look at their initial reasons for denying the claim, and their specific claim facts and circumstances to better deduce whether sending the claimant to be evaluated by an IME is worth it or not.

To IME or not to IME, that is the question – and we hope that you now have a better understanding of how we answer this important question.

If you have questions regarding how to better handle your workers’ compensation claims, contact:

• Robert W. Clark
• Philip Unwin