Get It Right the First Time: Why You Should Not Skimp on an IME Cover Letter
We have all been there. The workers’ compensation law judge has directed the carrier to produce an Independent Medical Examination (IME) within a specified number of days. Somehow, we managed to get the report completed timely, even after many scheduling attempts, cancellations, or claimant no-shows. Then, your IME consultant failed to address the key questions.
We can try our best to have the law judge grant the carrier an opportunity to obtain an addendum, but the reality is that we run the risk of preclusion and increased liability. We leave ourselves open to the claim being amended to an additional site, awards directed per the treating physician’s opinion (which could lead to a protracted healing period), or even a finding that the carrier waived the opportunity to produce contesting evidence of permanency. Ultimately, we will almost always have to appeal any adverse findings resulting from the preclusion, which leads to unnecessary, additional legal fees.
Making sure that your IME consultant has a clear understanding of the reason for the examination, as well as the specific items that must be addressed in their report, will save everyone time, stress, and money. Here are three examples of ways IME cover letters are useful and can help avoid additional obstacles throughout the case:
- Avoid preclusion due to medical opinions on issues that are not yet ripe. For example, if you want the claimant evaluated a few months after surgery with the intention of only addressing degree of disability, you may find yourself in trouble if the consultant finds maximum medical improvement and provides a permanency opinion prematurely. We can expect that this report will be precluded. Specifying in a cover letter that the claimant recently underwent surgery and, therefore, we are only seeking an opinion on further causally related disability, would help avoid unnecessary comments.
- Your legal counsel can lay a sturdy foundation for future litigation. The parties will often enter into litigation following a conflicting opinion from the IME. By providing the consultant with a cover letter, we ensure that he or she will comment on the legal requirements for the issue at hand. For example, when the parties are in dispute over the degree of disability, we want our consultant to have fully addressed the criteria for the claimant’s degree of temporary impairment per the guidelines. This way, when under cross-examination during a deposition, the IME consultant can answer confidently having addressed each item during the examination, and avoid concessions that will damage credibility.
- Highlight prior or subsequent accident/medical history. The IME consultant might not think to query the claimant regarding unrelated incidents or conditions that may be affecting the claimant’s ability to work. With a cover letter, we can direct the consultant’s attention to these issues and ensure that he or she specifies what is causally related versus what is attributable to outside factors, thereby potentially limiting liability. With a comprehensive medical opinion, we can begin to build an argument for unrelated wage loss or apportionment.
Moving forward, even if an adjuster prefers to schedule an IME on their own, we recommend having legal counsel prepare a cover letter in order to ensure that all bases are covered.