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Independent v. Impartial Examinations in Boston Workers’ Compensation Cases

When a worker is injured on-the-job, he or she may go to the emergency room or to visit his or her own doctor. If the insurance company later fails to provide worker’s compensation benefits, the medical records for those examinations and records from any subsequent treatment can be submitted as part of a workers’ compensation claim before the Massachusetts Department of Industrial Accidents (DIA). These records are considered by a judge in a conference proceeding, and again by a court selected doctor if the judge’s conference order is appealed.

The insurance company often will send an injured worker to their own independent medical examination (IME) if there are any question as to the extent of the injury or the injuries relatedness to the accident. An injured worker is required to attend this IME or they risk losing their workers’ compensation benefits. Often times, the insurance company will consult a list of favored providers they have worked with before. Many of these doctors earn most of their money solely through these insurance examinations. While these are referred to as “independent examinations,” in reality the opinions of these medical providers are often skewed in favor of the employer/ insurance company. While these doctors are required to exercise independent medical judgment and cannot work directly for the insurance company, their continued placement on the insurance company’s list of examiners is unofficially tied to the doctors providing decisions favorable to the workers’ compensation insurance company. The doctors frequently find injured workers capable of working or they minimize the injuries and work-related illnesses.

As one might expect, these insurance medical examinations are often vastly different from the claimant’s treating physician’s examinations. As Boston workers’ compensation attorneys at The Law Offices of Jeffrey S. Glassman can explain, this caused a lot of litigation over the years at the Massachusetts Department of Industrial Accidents (DIA), due to competing types of medical testimony.

Impartial Medical Examiners

As the conflict wore on, the DIA reached out to the state representatives and asked for help in finding a solution. The result was to the creation of impartial medical examinations. Through this procedure, injured workers are now examined after a conference and before a hearing by a doctor supplied by the DIA. This is a not a doctor who directly works for DIA, but is instead a doctor that has volunteered to assist the court. They are placed on a list and the court selects one near the injured worker to conduct an impartial examination. While it might not seem controversial, when the change was made by a 1999 amendment to the Workers’ Compensation Act (ACT), many people were upset. The amendment is now listed as Section 11A, entitled “Impartial Medical Examiners.”

Regardless of how one feels about the need to use an impartial medical examiner, the law has been in place for a number of years now and is relied upon my the administrative judges. Under the statute, the senior judge keeps a roster of impartial medical examiners updates the list as needed from time to time. The goal of this to ensure qualified doctors who can give an unbiased opinion about the claimant’s injuries are utilized y the department.

It is not in every case that the claimant must submit to an impartial medical examiner. If the claimant’s doctors and the insurance company doctors are in agreement, then there is no dispute as to a medical condition and no need for an impartial medical examiner.

If there is a dispute as to a medical issue, and a conference order is appealed pursuant to Section 10A, the impartial process is started. The parties can agree to a doctor on the impartial roster and submit that request to the administrative judge (AJ). The judge can then assign that doctor if he or she is available or another as the judge deems appropriate. The appealing party must pay the fee, which is currently $650. When both sides appeal, the fee is often split evenly amongst them.

After the payment is made, a mandatory appointment is scheduled and the doctor examines the injured worker/employee. One week before the date on which the hearing is scheduled, the impartial medical examiner must submit a report to the parties and the hearing officer (the AJ).

The parties cannot submit their own medical examinations during the hearing. The only medical report the AJ is permitted to consider is the impartial medical examiner’s report. This has caused controversy in the worker’s compensation field, and many argue it is an unfair rule. There have been numerous court challenges to the process – mostly arguing violations of due process. However, the law remains largely intact, and is followed closely to its original writing.

Lawyers from both sides can depose the impartial medical examiner prior to a Hearing. During the deposition, the attorneys will often use the records from their respective doctors as the basis for hypothetical questions. The attorney or the AJ will ask the expert witness a series of “what if” questions that often reflect that side’s take on the actual claimant’s condition. The expert must answer these questions to the best of their ability. The questions and answers can then be relied on by the AJ to form the basis of their legal opinion and to making findings of fact. The judges findings ultimately contribute to the judge’s final order in the case.

Richard S. Higgins’s Case

A significant case in regards to independent medical examinations conducted by the workers’ compensation insurance company is Richard S. Higgins’s Case, 460 Mass. 50 (2011). Here, the Supreme Judicial Court of Massachusetts agreed with the reviewing board of the Massachusetts DIA and found that injured claimants were entitled to discovery as to medical records for any examination made pursuant to the Workers’ Compensation Act, and that the claimant could use an independent medical report for the purpose of cross-examination of the impartial medical examiner during a deposition. This was without regard to whether the report itself would be admissible as evidence during the hearing. The court found that doing so affords the claimant a Due Process right and is in the interest of justice.

If you are injured at work and are facing an impartial exam as part of your claim, our Boston workers’ compensation attorneys can help guide you through this process.

Contact the Law Offices of Jeffrey S. Glassman today for a free and confidential consultation.

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