One Missing IME, Too Many

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I recently attended a hearing that was scheduled pursuant to claimant’s RFA-1, requesting reinstatement of awards. You’re probably wondering, why were awards suspended in the first place? Because claimant had missed three scheduled independent medical examinations (IMEs)! She also did not have current medical evidence of a further causally related disability at the last hearing. The prior notice of decision read wonderfully, “suspension is effective until such time that the claimant produces up to date evidence of disability and indicates a willingness to attend the IME.” The claimant was also directed to file an RFA-1LC when she was “ready to proceed” at which time the carrier was to schedule an IME. The notice of decision also directed the claimant to attend all appropriately scheduled IME appointments, or advise of any conflicts in advance.

At the hearing, the claimant had a soon to expire medical record from her treating doctor who opined 100 percent degree of disability and we had a newly viewable IME-5 in the New York State Workers’ Compensation Board file. Prior to the hearing, I was advised by counsel that the claimant could not attend the upcoming IME, but that she would be requesting a reinstatement of awards. Of course, we could not come to an agreement. When the administrative law judge (ALJ) called the case, he allowed testimony and swore claimant in. She provided vague and unconvincing testimony that her husband was having morning surgery somewhere in New Windsor for stomach issues and therefore she could not attend the late afternoon IME. She also mentioned that she has four kids and had to pick them up from school. Her testimony in its totality suggested that her husband was undergoing a colonoscopy and that she had to pick up her children at the same time as the IME, but family members might be able to assist her. Over claimant’s exception, the ALJ directed that she attend the already scheduled IME, denied claimant’s request to reinstate awards and continued the case for production of the IME and discussion of awards. This is the most favorable outcome because had awards been directed based upon her treating doctors soon to expire medical record, it would be undisputed medical evidence of 100 percent degree of disability.

One missed IME is one too many. When a claimant knows they are unable to attend an IME, why don’t they advise ahead of time and get a new IME date? Sometimes they do, but more often than not, they do not attend and then there is a no-show fee the carrier is responsible for. In general liability cases, if a plaintiff misses an IME, there can be a remedy that involves the plaintiff paying the no-show fee. We do not have that remedy in workers’ compensation. Therefore, we must file a RFA-2 as soon as the first IME is missed and reschedule a new IME. While it is unlikely that an ALJ will suspend treatment and awards for one missed IME, the ALJ will certainly direct the claimant to attend the newly scheduled IME. If claimant misses another IME, we will be in a better position to argue for suspension or reduction of awards, despite lack of contradictory medical evidence. One missed IME is one too many and filing the RFA-2 after a missed IME sends out that message loud and clear.

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