Independent medical evaluations (IMEs) are an essential element of the workers’ compensation legal practice. I represent employers and the IME is one of our main tools to use in addressing and attempting to control medical treatment costs, as well as lost time costs. The Illinois Workers’ Compensation Act allows injured employees two choices of doctors when seeking treatment. The two-choice rule means that the employee can seek treatment from any doctor he/she likes, and furthermore, any doctor within the chain of referrals from that first doctor is covered under the first choice. The employee can then move to another doctor and all of that doctor’s referrals as their second choice. The employee’s ability to choose his/her own physician leads to higher medical costs in workers’ compensation in this state than in other states that allow employers greater control over medical treatment.
It is important to use IMEs wisely because the Illinois Workers’ Compensation Commission typically accords greater weight to the injured worker’s treating physicians’ opinions than the IME doctor’s opinions. Therefore, in order to overcome that bias, it is very important to use high quality independent medical evaluators. At times, employers get caught in the trap of using the same conservative physician time after time and the physician’s reputation is quickly compromised at the Commission from the Arbitrator’s perspective.
Therefore, an independent medical evaluator should be selected with an appropriate specialty to the injury at issue in the case, and one who will exercise independent judgment rather than “tell you what you want to hear.” By using a variety of highly qualified physicians, employers will put themselves in a position to earn credibility at the Commission regarding their independent medical evaluations.
Secondly, it is important to pay attention to the details. Section 12 of the Act requires you to send transportation expenses to the employee with notice of the independent medical evaluation. You should also give an injured worker adequate notice of the evaluation, copy his/her attorney, if there is one, and provide clear instructions regarding your expectations related to the appointment.
Thirdly, and perhaps most importantly, it is very important to give the independent medical evaluator medical records related to the employee’s injury and a clear inquiry as to what you are looking for out of the examination. When drafting a letter to an independent medical evaluator, keep in mind that that letter may become part of the record of the evidence in the case. Therefore, it is important to approach the letter in an evenhanded and objective manner. One good way to test this is to review your letter and ask yourself is there anything in the letter you wouldn’t want read out in public in court in front of you. If so, re-write your letter.
Next, it can also be very helpful to talk to independent medical evaluators or ask follow-up questions regarding your issues. Sometimes independent medical evaluators will have research articles or other material that will support their opinions and can be very persuasive at trial.
Finally, once you obtain your IME report, read it carefully and follow up. I typically immediately send it to my opponent so that I do not run afoul of the 48-hour rule. That rule requires you to tender any IME report that you want to introduce into evidence to the other side at least 48 hours before the start of the hearing. IME reports are hearsay documents, so you may need to take your doctor’s deposition if a hearsay objection is raised. That leads to another good point, which is that ideally your IME physician will be able to provide clear convincing testimony if necessary and be willing to prepare for his deposition.
These are a few thoughts from the defense perspective.
About the Author:
Mr. Christopher J. Gibbons is a Shareholder with the Chicago Law Firm Nyhan, Bambrick, Kinzie & Lowry, P.C., Executive Secretary of the Illinois Self-Insurers’ Association and Chair of the Illinois Employer Workers’ Compensation Coalition (Tuesday Working Group). Mr. Gibbons received his Bachelor of Arts from the University of Wisconsin in 1987 and his Juris Doctorate in 1992 from Loyola University Chicago School of Law. He is admitted to practice before the United States Supreme Court, the Supreme Court of Illinois, all Illinois state courts, and the U.S. District Court, Northern District of Illinois. His areas of specialty are trial and appellate practice in the workers’ compensation and employer liability law. Mr. Gibbons’ clients include Advocate Health Care, Caterpillar, Inc., Provena Health Care, Commonwealth Edison/Exelon and Exxon- Mobil. He can be reached at (312) 201-0829 or cgibbons@nbkllaw.com.
