Disability Insurance Attorneys Dell & Schaefer educate policy holders on what they should expect in an IME exam. Often, claimants are not prepared, and they needed to be protected. Dell & Schaefer gives examples of fundamental things that every disability policy holder should expect when going to an IME exam.

GREG DELL: Hi. I’m Greg Dell. And, today, attorney Cesar Gavidia and I are going to talk about a common topic that is a somewhat scary experience for disability insurance claimants. And that deals with what’s called an independent medical exam. But what we really refer to as compulsory medical exams. And that’s because your disability policy has a provision which requires you to appear at this exam by a doctor that’s chosen by the disability insurance company. And if you don’t go to the exam, your entire policy could basically be voided.

But what we want to talk about is kind of like what you should expect in going to this IME exam, some ways to prepare, and how we advise our clients in the best manner to try to protect them. So let’s start off first with before going to an IME exam, what are kind of like the fundamental things that you tell a client that they should expect is going to go on at the exam when they get there?

CESAR GAVIDIA: Well, Greg, like you said, we refer to them as compulsory medical exams. And that’s because we do consider it an adversarial type of proceeding. This is a medical consultant, or expert, doctor, that the disability insurer has specifically selected, or their third-party vendor that they deal with all the time and have paid, you know, who knows how many hundreds of thousands, if not millions of dollars to do these types of vendor selections to find.

And so some of the things that you can expect are that this doctor may be an examiner consultant that the disability insurer has used many, many times. And that may mean that this doctor may have a particular bias in favor of the disability insurer. And considering that this doctor could be tainted by such a bias, there should be certain protections in place for the insured.

GREG DELL: OK, I want to talk to you about those things about how we try to protect the claimant. But I first want to ask you, how do you recommend a claimant behaves? What kind of demeanor should they carry? How should they answer questions? Things like that when they get there.

CESAR GAVIDIA: Well, they should always just have a pleasant demeanor. They shouldn’t enter the examination confrontational. They shouldn’t be combative with the independent medical examiner in any way. They should just go in and just be in a more or less pleasant demeanor. They shouldn’t have any sort of real anger with this doctor that’s been selected, even though they may understand or know that this may not go in their favor, or there may be things that occur during the examination that they may be suspicious of or have some concerns with.

And sometimes these examiners, they haven’t even bothered to review your medical records. So you may start questioning them about, well, did you read this record? Or did you review this? And they may not have done any of that. And immediately right then, you may feel the need to be defensive or combative. And you shouldn’t do that. You should just proceed with the examination without getting into that sense of combativeness or aggression.

GREG DELL: Should they behave any differently than they would for their own treating doctor?

CESAR GAVIDIA: No, I mean, they should they should just go in with a more or less pleasant demeanor. They shouldn’t be really treating it any differently from that standpoint as if they were going to see their own physician.

GREG DELL: You segued into another area. Should the claimant assume that the doctor knows their medical history when they get there?

CESAR GAVIDIA: It can be expected. But that’s not always the case. Oftentimes these medical examiners are there to see the patient on behalf of the disability insurance company. They haven’t had any chance to even know what you’re there to see them for, whether you’re there for a neck condition, an arthritis condition, or some other issue. They may review the medical records later. I mean, that’s a critical part of this type of examination is that they do know what you’re there for, but that’s not always the case.

GREG DELL: Right, and so if you think about a claimant who goes to a new doctor for the first time, you know, let’s just say it’s an orthopedic issue. And they’ve had an internist who says, OK, I want you to go see the specialist. Often when you show up at the specialist, they don’t necessarily have your full medical history. They only go upon what you tell them.

So when you go see the orthopedic doctor and you go in there for a back problem, and they say, tell me what’s going on. They may say, do you have an MRI? Have you had an X-ray? If not, they’re going to send you out for that.

So you shouldn’t expect, in my opinion, that the IME doctor has reviewed the records. But this is different than going to someone for a second opinion, because the proper way for the IME doctor to do the job is to have been sent all of the medical records and review all the medical records and now say, OK, I saw all the records, let me take a look at this person, because I’m being asked as the hired doctor to do a specific exam based upon the complaints and the medical condition that this person has. So I think it’s a lack of preparedness by the reviewing doctor to have not looked at the records beforehand, to not focus in on what the claimant’s saying.

Now, how much, assuming the doctor – because I find that 50-50 they’re prepared and 50-50 they’re not, right – how much should the claimant who’s going in there be responsible to educate them about their medical history?

CESAR GAVIDIA: I don’t think they should be responsible, because the word you’re using is, do they have a responsibility to educate this doctor? This isn’t an IME that they selected. This isn’t an IME that they necessarily requested. It’s one that the insurance company has asked for.

So generally, it’s the responsibility of the disability insurer to educate the IME doctor. But again, we’re using the word educate. And by education, what the disability insurer basically does is send them all of your medical records that they’ve compiled. They may have one of their own medical consultants in-house reach out to that IME doctor and say, here’s a list of things we want you to look at or list of questions we’d like you to respond to or answer. And to that extent that’s how they educate them. They brief them, so to speak, on what they’re going to be doing and what they’re going to be looking for in the type of patient they’re going to be seeing.

GREG DELL: Right. And so here’s the catch all, because we’re always thinking about protecting the client, but at the same time, we’re thinking about, what if they deny that claim? How are we going to prosecute the claim and go after the faults of the insurance company? And one of the best ways to do that is for the claimant to go in and basically answer what you’re asked but not volunteer new information or things that aren’t asked.

Don’t go in and try to sell your condition to the doctor. It’s not your job. Because if the doctor does a poor job and doesn’t consider all of your medical records and never asked you specific questions or never had you bend or do different types of tests or anything, then later on when he renders the report, we’re going to go back and say to you, did he do these 15 different things to you? Or did he ask you these 15 different questions? And when you say, no, then when we get the opportunity, assuming your claim is denied, and we get the opportunity to cross-examine or question this particular doctor, we have a whole group of things that this doctor didn’t do.

The other thing is that even if, let’s assume it’s an ERISA claim, which a lot of these claims are and we’re never going to have the opportunity to question the doctor, is he’s not going to have all that information to put in his report because he never questioned the claim and/or did specific things, and it’s never documented in his complaints. And now, we have a list of 15 different things to talk about in our appeal or in our lawsuit about why that doctor’s review was unreasonable.

CESAR GAVIDIA: Right. And that’s what I would do with such a case involving an IME doctor like that is use the lack of really reliability in that report and in his examination to impeach him, to discredit him, and to say, the disability insurer either arbitrarily, capriciously decided this claim because they relied on an unreliable, uncredible IME doctor and his report.

GREG DELL: Right. And then many of the doctors want claimants to fill out, like when you kind of go to a doctor and they say fill out your medical history form and all these other things, I often tell my claimants, if they want you to do any of that, we’ve got to get it beforehand. We got to look at it. If not, I’m not going to have you show up there and start filling out all this stuff when we’ve already sent, especially when you’re our client, extensive medical documentation to the insurance company. It’s their responsibility to give that doctor all the records.

You’re just there to show up and be physically touched and looked at and to verify that you’re a real person who’s having real functional limitations. And whatever that doctor thinks they’re going to see when they examine you they’ll see. But it’s not your job to have to tell them the full medical history.

Now, that’s not to say if they ask you, have you been somewhere? Have you been there? You answer the question. But you don’t go there and have to fill out a whole form and educate them about every single thing when you get there, because they’re going to look for inconsistencies. You may be nervous when you’re there. And you may not remember. You’ve been dealing with an issue for two years, three or sometimes 10 or 15 years, and you don’t know the full medical history. So there’s nothing wrong with saying that the company already asked me for all the records. I sent them all. Or I can have my lawyer send it or whatever it may be.

Just to mention here, it’s important, our claimants being watched at this exam before or after? What’s your experience with that?

CESAR GAVIDIA: Well, they’re obviously being observed by the doctor and whatever staff he has in there, if he as a nurse or someone else in there observing you. But you have to treat – from the moment you leave your house to the moment you get home assume that you’re being watched. Assume that you’re on surveillance, because disability insurers will often put a private investigator to conduct surveillance before and after an IME. It could be days before. It could be immediately before. So I always tell my clients treat it us from the moment you leave your home to the time you get back that you’re being watched from that moment on.

GREG DELL: Right. I mean how many claims have we read about, not necessarily our clients, but claimant goes in. They take a cane from the car. They struggle to get out of the car. They walk in with the cane. They left with the cane. And then they might use the cane after. And then the next day they’re going to lunch or whatever and there’s no cane there’s no nothing. And so, not to say they never used a cane, but if it’s not a day when you don’t need the cane, don’t use the cane. Don’t go in there trying to look your worst because you think it’s going to.

CESAR GAVIDIA: Don’t put every brace and wrap on, I mean, because these doctors do know the type of accommodations and things you need if they’ve read your medical records, and obviously, they should be versed in the medical conditions you’re claiming disability from.

GREG DELL: Right. And the doctors are watching you. I mean, they’re suspect that you’re exaggerating your symptoms. That’s just human nature. That’s the way it is. Like it or not, that’s the way it’s going to go down.

And they’re watching you get out of the car. They’re watching you walk in the office. They’re watching you walk around. They’re watching how you get on and off the table. They’re watching your demeanor when they do certain things.

They’re also doing what are called Waddell’s signs on a test, which are things they’re doing to you which under no circumstances should cause any discomfort whatsoever. And if you were to say, yes, that’s uncomfortable, then that’s a proven test to know you’re exaggerating. So they’re doing those kinds of tests of you when you’re there.

Now, just a little bit more about expectation when they’re there. Are they going to have to be – you know, how physical is it? Are they going to be injected? Or are they going to have to be cut or anything like that when they’re there?

CESAR GAVIDIA: No, they shouldn’t be doing anything invasive. But depending on the type of IME that you’re being sent to, for instance, a functional capacity examination, they’re going to be testing certain physical functional limitations. So they may have some tasks or exercises that they put you through that might not necessarily feel comfortable.

In the setting of just being there with another doctor, a physician who’s doing a physical exam, he may ask you to stand or walk. Or he may ask you to bend, like do things that may be physically uncomfortable for you. But under no circumstances should they be doing any sorts of injections or surgeries or anything like that.

GREG DELL: And then what about X-rays? Some people say he wants to take an X-ray. Should I do it?

CESAR GAVIDIA: That’s not very common, but it can happen. But, again, I think there is a basis to object to an X-ray or an MRI or anything like that, because it hasn’t been prescribed by your doctor. And there are certain things that this IME doctor – it’s almost crossing into the area of medical treatment, even though, for instance, an X-ray or MRI is used to diagnose. And he’s not there necessarily to diagnose a problem. He’s there to assess whether this person has physical, functional restrictions and limitations.

GREG DELL: OK, so let’s talk about some of the suggestions we give to protect the veracity or truthfulness of what goes on at the exam. What are some common suggestions?

CESAR GAVIDIA: Well, I always recommend, if they allow it – because not in every case and not in every state are you allowed to take a third party with you, such as a videographer or someone to do a tape recording or audio recording of the examination. Those things I usually do requests from the disability insurance company beforehand and get their consent and their IME doctor’s consent to do before we submit to the examination.

Now, if they decline, you usually still have to follow through with the examination. In most cases, you can’t just say, I’m not going to follow through. I’m going to object to the examination. In almost every case you still have to go through with the examination.

GREG DELL: I think you have to – when it comes to video, you’ve got to go there. You’ve got to say, I’m here, ready to be examined, but I want my video. And if you don’t want to allow the video, then you’re deciding not to have me here, because there’s no harm. I’ll give you a copy of the video. There’s no prejudice to you. And I’m here. I’m not refusing to be examined. But I want to videotape.

And the reason I want a videotape, especially if it’s ERISA, is because once I leave this office, I will never have the opportunity to depose you, speak to you, question you. I am married to your decisions. And I can’t question you. I can’t confront you. So this is my only day to have the court, in the event that you disagree with something or there’s anything inconsistent, for me to show the court or show the insurance company. So I am 100% uncomfortable unless we’re going to have a video here.

And there’s really no concrete case law to say that that’s considered a refusal, because in my opinion – this is again, just our opinion – the doctor is the one who refuses to see. You’re there. They refuse to see you. So that’s the battle.

Now, ultimately, the client’s going to make the decision to say, well, I’ll just go forward or, no, I’m not, because the insurance company can just continue to deny you on that basis or deny you if you’re in a situation where you’re still getting paid.

CESAR GAVIDIA: But another question we often get is, can I bring my spouse? Or can I bring someone there to be a witness to what’s happening? And I often recommend that. And usually that’s allowed, because there’s no reason why they shouldn’t allow some neutral third person to be there to just observe and make sure everything is followed through with and it’s done properly.

But I usually tell them, do not have them engage in the examination in any way. I like if they’re taking notes, because then you have someone there that’s just observing and taking notes as to what they did, what they said, and that type of thing. I think that’s always a good idea.

GREG DELL: The other one which is usually approved, not as good, is to have a court reporter present to document what’s said. So at least there’s no inconsistencies as to whether or not you were asked something or not asked something.

Now, let’s talk about something that you’ve dealt with many times, which is audio recordings. What’s the legality behind that?

CESAR GAVIDIA: Well, it varies from state to state. There’s what are called one-party consent states and two-party consent states with respect to audio recording. We always recommend that you obtain the consent of the parties being audio recorded, because in some states, it is considered a felony to record someone without their knowledge, to audio record someone without their knowledge.

So in states where there is a one-party consent, meaning that you’re the one party and that as long as you give consent, you can audio record the conversation without the other person knowing, that’s been done in some cases. And in some cases, it’s been used very favorably to the insurer’s benefit, because there were things that may have been said that were not exactly didn’t either appear in the report or were not consistent with what this doctor put in the report. So it can be a very valuable piece of evidence.

GREG DELL: Right. So in summary for that, if you can record it, it’s usually great. There are some situations where a claimant looks like really so good, it may not be necessarily that good to record. But it’s more often than not that it’s better to record it.

CESAR GAVIDIA: Well, when you’re dealing with some disabilities or medical conditions where it may not be obvious by just the person’s appearance that there is something going on, then by video recording, your client may appear pretty good, like they’re physically doing very well.

GREG DELL: Right. So those are the, you know, discussing about recording it and trying to document it and that’s the best thing you can do, because later on we’re going to get the report. Now, the case law has changed somewhat where they have to – moving forward in ERISA claims, they have to give us a copy of the report and allow us the opportunity to respond to that. That’s great. It used to never be that way. So that’s good. We’re going to have an opportunity to look at and comment on it and try to provide additional information, if necessary, or dispute something if needed to help get a better argument in. And that’s a new thing that came out with the 2018 ERISA regulation changes, which was a really great positive.

So the other thing, be prepared. Understand your medical records. Know what you’ve told doctors before. Know the weaknesses, which we would educate you if you are our client as to maybe something your doctor should have been documenting, but wasn’t, because the other doctor’s going to pick up on that. Not necessarily presenting new things to this doctor if it’s never been presented to the other doctor. They’re not there to treat you.

So lots of things in a nutshell that we’ve presented here today. We always advise clients beforehand in more tell us to real specific questions that you’re going to get, especially when we know what medical condition it is, because every doctor is going to do a different type of exam. And we’ve seen all the different types of exams. And we can walk you through every step of that as to what the doctor’s going to do. And there literally will be no surprises. And if they are, then it’s something that is going to raise a red flag, then you probably shouldn’t be doing.

So feel free to call Caesar or call myself or any of our disability attorneys. We help disability insurance claimants all over the country. We always offer a free initial consultation. And we look forward to the opportunity to speak with you.