Impact of Covid-19 on IMEs
Struggling to get an independent medical examination (IME) scheduled? You are not alone! Between stay at home orders, the closure of doctors’ offices, social distancing, face masks, and travel restrictions/quarantine for neighbor islands, getting an IME actually completed is quite a feat. Many IMEs have been cancelled, the injured worker is a “no show”, or adjusters are simply afraid to refer claims to IME due to the inability to secure an order, if needed, from the Department of Labor and Industrial Relations, Disability Compensation Division. Sadly, the Covid-19 crisis is also being used by some as an excuse to purposefully delay an IME in an attempt to prolong receipt of workers’ compensation benefits.
It’s true that an in person IME carries the inherent risk of spreading Covid-19. Many Covid-19 carriers are asymptomatic and pre-screening in the IME setting is not ideal. In addition, attendance at IME requires at least local travel. An argument may also be made that an IME is not medically urgent and is, therefore, non-essential. Forcing an injured worker to attend in person IME may expose the employer to additional liability including stress and/or Covid-19 as a compensable consequence.
First of all, please understand that you may not need an IME at all depending on the issue. A medical record review is plenty sufficient if the issues are causation, work relatedness, reasonably needed medical treatment, and/or return to work. These issues may be easily answered from a record review.
If you have to get an IME, certain progressive providers are now set up to perform virtual IMEs. What are virtual IMEs you ask? Virtual IMEs utilize the same technology as the growing industry of telemedicine, but to perform IMEs rather than render medical treatment. Virtual IMEs may be performed with the physician and injured worker both communicating from whatever location they want to on a personal device using FaceTime, Zoom, or other platforms. A good history can be obtained during the virtual IME. The physical examination portion is more challenging, but not impossible for the experienced virtual IME provider. The virtual IME provider may also rely more heavily on physical examination of the injured worker by his own physician as documented in the record.
Because of the increased likelihood of controversy over the virtual IME, it is best performed with the consent of the parties. The primary arguments against virtual IME are that the IME provider: (1) is not physically present during the exam and, therefore, his opinion lacks sufficient data and is absent of reliable methodology and (2) is relying on hearsay and physical examination data obtained by others. However, the fact of the matter is that IME providers often base their opinion at least in part on medical information provided by others. The American Medical Association’s Guides to the Evaluation of Permanent Impairment (Guides) do not directly address virtual IMEs, but it does emphasize that IME providers must assess the reliability of various components including the injured worker’s functional limitation reports and inconsistencies in subjective complaints versus objective findings. IME providers should not record the entire virtual IME encounter nor should an out of state provider perform a virtual IME across state lines, which may raise licensing issues.
In the long run, I don’t expect virtual IMEs to completely replace in person IMEs, but it is certainly a viable alternative during the Covid-19 crisis. There is no indication that Covid-19 restrictions such as social distancing, face masks, and travel restrictions are going to disappear anytime soon. I believe we will be living with this new “normal” for the foreseeable future. The time to adapt and overcome is now. Sticking your head in the sand will not resolve claims. Virtual IMEs are your best bet. Just be sure you are relying on experienced IME providers and counsel to guide you through these interesting times and issues.
For specific questions, please feel free to reach out to us at the Law Office of Nathalie S. Pettit, Inc. We are here for you.