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Although there is no cure-all that can make every IME report perfect, some things do make a difference. For example, IME experts are more likely to give more weight to the history that is given closest in time to the injury. Hence, it is vital to take recorded statements as soon as possible after an injury is reported. IME experts are also more likely to be suspicious of an injury’s legitimacy if contradictory histories of injury are given. In addition, evidence of prior problems involving the same body part increases the likelihood that the expert will conclude that the examinee experienced a mere manifestation of a preexisting condition or a temporary aggravation. Diagnostic imaging studies often can be used to predict whether the expert will conclude that the condition is traumatic or preexisting and chronic.
One underappreciated factor in predicting the outcome of a report is mechanism of injury. Often how the examinee claims the injury happened is critically important. We can reliably predict that an orthopedist will find a meniscus tear to be non-industrial if the examinee does not report a twisting mechanism of injury. Also, in cases of significant acute injury and disability, a delay in treatment increases the likelihood that the expert will find that the injury did not occur as alleged and represents the mere manifestation of a preexisting degenerative condition. For example, an expert is more likely to conclude a massive rotator cuff tear has a non-industrial origin if the examinee claims a traumatic episode cause the injury but he nonetheless waited a week to report it because the expert is likely to conclude that a massive acute tear would be so painful and disabling that the examinee could not continue working and would have reported the injury immediately.
Mechanism of injury is important in occupational exposure claims as well. An accurate job description, job video, and physical demands analysis tailored to the examinee can go a long way toward predicting whether the expert will find the work exposure to be a cause of the condition. Finally, the examinee’s personality will have some bearing on the expert’s opinion. Experts tend to be less sympathetic toward hostile and unpleasant persons then friendly and straightforward persons.
What is your technique to substantiate mechanism of injury? Does it work and why?
Cognitive biases and personal judgment tends to cloud how we assess problems and outcomes. When evaluating a report, we should be aware of these biases so that we can avoid them and the distorted view they give us. Some common cognitive biases include:
Ambiguity– the tendency to avoid options for which missing information makes probability seem ‘unknown;’
Availability heuristic – overestimating the likelihood of events with greater availability in memory, i.e. events more noteworthy or nearer in time;
Anchoring– the tendency to rely too heavily on one piece of information when making decisions (usually the first information we receive);
Confirmation– the tendency to find, interpret, and look for evidence that confirms one’s preconceptions;
Bayesian conservatism – the tendency to revise one’s beliefs insufficiently when presented with new evidence;
Illusion of control – the tendency to overestimate one’s degree of influence over external events;
Sunk cost fallacy – justifying increased investment in a decision based on cumulative prior investment despite new information suggesting that the decision was probably wrong;
Outcome bias – the tendency to judge a decision based on its eventual outcome rather than on the quality of the decision at the time it was made, i.e. the pro athlete that doesn’t get cut because of a huge signing bonus or guaranteed contract long after it becomes obvious that his performance has deteriorated; and
Subjective validation – the tendency to perceive something as true if a subject’s belief demands it be true (“I think he’s a faker so the report is garbage if it doesn’t confirm my belief that he’s a faker”).
Being aware of and attempting to eliminate our innate biases will make us better judges of reports. For example, the cover letter writer may have had seven previous claims with the examinee all of which were suspicious. This will tend to cause the cover letter writer to be subject to the Anchoring Bias, seeking validation and making him prone to negatively judge any outcome that does not confirm his uncertainties. Failing to eliminate these biases can be damaging to the claim if the injury was witnessed, promptly reported, and is supported by adequate objective medical evidence. In such a case, an unbiased person would consider the conclusion that the examinee’s complaints are related to the work injury to be both reasonable and likely.
What bias are you most “guilty” of and why?
The expectations for an IME report should start with and be based on the objective evidence presented to the expert and the reasonable inferences that can be drawn from that evidence. Without an accurate accounting of the evidence, it is impossible to state with any degree of reliability if the expert’s conclusions are reasonable. This is equally true of favorable and unfavorable reports. For example, if we were unaware that the examinee had a non-industrial injury treated with a meniscectomy, then we would not have any reason to question the expert’s conclusion that the examinee’s total knee replacement related to his work as an electrician.
In any claim there are a limited number of reasonable conclusions that can be drawn from the available evidence. Knowing the claim in depth will ensure that the reader will be able to assess whether the expert’s opinion, favorable or not, is at least reasonable under the circumstances. We may not know exactly what the expert will say but we should be able to figure out the range of possible reasonable responses and how likely each reasonable response is.
To determine the range of conceivable responses, the reader should do his best to remove emotion from the analysis and refrain from making subjective credibility judgments. The first step is to set out the objective evidence. Once the assumptions are drawn out, the reader should analyze how well-supported each is. Then it can be determined how likely each conclusion is to be drawn among the competing inferences. For example, an expert is likely to find a rotator cuff tear to be work related in an examinee who is a painter and performs a significant amount of overhead work. However, if we also know that the examinee is a former college and minor league pitcher who stopped playing baseball near in time to his first medical treatment, we may conclude that it is at least as likely that the expert will attribute the rotator cuff tear to the examinee’s history of pitching instead of his work as a painter. The point is that the reader cannot fairly judge the expert’s opinion unless the reader considers the facts presented to the expert and the reasonable inferences the can be drawn therefrom.
Once the reader has engaged in this level of analysis, he should ask what, if any, additional evidence would make weak inferences strong. As in the example above, if the reader provides the expert evidence of minor league pitching activities (i.e., surveillance footage or witness statements) that would strengthen the likelihood of the expert concluding the pitching was at least in part contributable to the rotator cuff tear.
Conversely, he should consider what evidence, if discovered, would weaken strong inferences. Again as in the example above, if the examinee was a 57 year old who lost his balance while painting a ceiling and hung from scaffolding until rescued, this could have caused the torn rotator cuff.
Considering all possibilities ensures the reader will not be surprised if the value of the IME report changes over time. It also helps the reader to be responsive to new developments by requesting a supplemental or addendum report when necessary.
Do you have any tips or ideas on collecting evidence for the IME expert?
In the ancient world, epic poems started in medias res, in the middle of things. Although (most) IME reports are not larger-than-life in scope, they do share some characteristics with epic poems. Knowing these shared characteristics is useful to keep in mind when reading IME reports and forming opinions about them. Most noteworthy is the simple fact that IME reports start, like classic poems, in the middle of things. Ancient Greek and Roman authors and critics understood that most texts, even when grand in scope, arise in a specific context and consequently cannot be understood adequately unless the reader is familiar with the history leading up to the events the text describes or depicts. For example, Homer (an ancient Greek poet) would have expected his audience for the Iliad (a story about the Trojan War) to know the historical and mythological background of the Trojan War. As such, the Iliad would not have been judged in a vacuum, but would instead have been judged in a commonly understood historical-mythological context.
An IME report is, in this regard, no different from the Iliad. We cannot judge the value of a report without giving due consideration to the content of the historical facts on which the report rests and how effectively the report deals with them. The Iliad is nothing more than an impressively long, rather disjointed, and perplexing poem unless the reader grasps the history and myths that suffuse the poems and Homer’s treatment of historical and mythological events. Likewise, an IME report cannot be fairly judged unless the reader grasps the evidence that was available to the expert at the time she wrote the report.
How do you judge an IME report? What is your criteria for what constitutes a good IME report?
Cover letters vary in length and thoroughness from the prolix (40+ pages) to the terse (one sentence). The question is how much is enough? Without a doubt, the most important part of the cover letter is the specific questions asked. Beyond that, the amount of information to include is a matter of personal preference. At a minimum most physicians appreciate knowing who the writer represents and a short neutral summary of the claim. Most physicians do not require (and many will not read) lengthy summaries of the medical records because they do not want to be influenced by another’s interpretation of the records. That being said, many physicians will pay attention when the writer points out a few of the critical pieces of evidence or records. To ensure that the physician addresses anything the writer specifically points to, it is best to ask the physician to address the specific evidence or records in the specific questions section as well. Beyond this, how much or little to include is ultimately up to the writer.
In drafting the cover letter, it helps to remember that the letter is being sent to a medical expert and not a legal expert. Using legal jargon when lay terms are available has the potential to confuse the expert. In cases where legal jargon is necessary, the writer should consider defining the term for the expert to avoid confusion. For example, a worker’s compensation attorney will understand the phrase, “We were impleaded into the case by Respondent X,” while a physician probably will not. Hence, it would be useful to explain to the doctor, “which means that the other insurance company brought us into the case based on Dr. Y’s opinion.” Using simple and clear language and avoiding jargon will go a long way to ensuring that the expert will understand your cover letter and exactly what needs to be answered.
There is no magic bullet that will give us a perfect IME report. However, careful drafting of the cover letter can help ensure that the expert addresses all (and only) the relevant issues. A concise and clear cover letter will also help the expert better understand the claim and the salient evidence. Thus, the cover letter is an important tool that can help you get the best IME possible.
Share your cover letter tips with us.
When approaching the IME cover letter, do you use a standard battery of questions? If you do, you most likely want to ensure that the expert answers questions related to all aspects of a worker’s compensation claim. Making sure your questions cover such topics as history of injury, diagnosis, causation (direct; precipitation, aggravation, and acceleration; mere manifestation; and occupational exposure), healing period/maximum medical improvement, past treatment, future treatment, temporary work restrictions, permanent work restrictions, and permanent partial disability.
The advantage of asking a standard battery of questions for every case is that nothing will be forgotten or left out. A great approach for less experienced claims handlers. In addition, if the questions are phrased consistently with the legal standard the writer ensures the expert’s opinion will meet the appropriate legal standard for each question.
The detriment to this approach is that it relies on the expert to identify all critical evidence and records and cite them in their answers to the specific questions. This can be problematic when the writer considers evidence or records to be critical that the doctor does not. If there is an issue the writer wants the doctor to address, the only way to guarantee the doctor will address it is to specifically ask the doctor to address it in the specific interrogatives section and the standard battery of questions approach doesn’t allow for this type of customization.
Additionally, the practice of asking a set battery of questions can produce untoward results if the questions address issues that the injured worker himself has not raised. For example, an injured worker may claim that he suffered a traumatic injury to his knee in a specific work incident, but he also has engaged in frequent and repetitive squatting, kneeling, and crawling for the last 20 years of his employment. If the standard battery of questions is asked, including a question on whether the injured worker’s occupational exposure was a material contributory causative factor in the onset or progression of his knee condition, the expert may conclude that the specific incident did not cause the injured worker’s knee condition but may also conclude that the occupational exposure did. Hence, it is possible that asking the expert a question about an issue that has not been raised or is not yet ripe can result in creating a claim that was not there.
In summary, the standard battery of questions approach has the advantage of being thorough and preventing any issues from going unanswered. It is also a good way of ensuring an inexperienced claims handler covers all the issues at hand. However, it also has the potential to create claims where none existed. If using the “standard battery” approach, it is best to at least consider the relevant issues and decide if additional questions really need to be asked and answered.
If you use the “standard battery” approach to specific interrogative questions let us know what questions you routinely use and why. What kind of results do you get?
Tailoring questions to the individual issues of the injury claim is a popular approach among Worker’s Compensation attorneys (both defense and plaintiff). The advantage is having the doctor directly address only the issues at hand. This approach will often cite specific facts or records and ask the doctor to address how the facts or records affect the claim for injury or compensation. For example, the doctor may be asked whether the injured worker’s statement to an emergency room doctor that his back has been bothering him on-and-off for several months suggests that his current symptoms relate to a preexisting condition rather than to the specific industrial injury at issue.
The benefit of this approach is that the writer uses the question to ensure that the doctor addresses a critical piece of evidence in their answer. The writer cannot ensure that the physician will address a critical piece of evidence if the writer asks a generic question such as, “what is your opinion on whether the injured worker’s current condition relates to the industrial injury?” Using a tailored question is the most effective way to focus the physician’s attention on specific evidence or records that the writer knows are critical to the claim. It also ensures other issues that were previously irrelevant to the claim are not inadvertently brought out by the expert.
The detriment to this approach is that it can be difficult to ask a tailored question that is not leading. In Wisconsin worker’s compensation cases, attorneys have considerably more leeway on direct examination than they would be given in a civil, personal injury case; nevertheless, it is possible that a blatantly leading question could be deemed impermissible. Also, tailored questions can be seen as compromising the reviewing physician’s independence. The expert is being retained to issue an independent opinion and while it is true that the expert, especially in worker’s compensation, will be expected to answer specific questions related to the claim, it is also true that the ALJ will expect the expert to reach her own conclusion and not merely parrot a conclusion suggested in a question. In addition, the writer must be careful when drafting tailored questions that the questions are broad enough in their entirety to ensure that the expert addresses all of the relevant issues in the case.
In summary, the tailored question approach has the advantage of ensuring that the expert will addresses critical evidence or records in her report and not bring other unconnected issues into the scope of the evaluation. The writer who takes this approach should, however, take care to draft the questions so that they are not impermissibly leading and do not compromise the experts independence.
Do you have any advice for drafting questions? Or maybe a particular approach that has worked well for you?
The most common approach to cover letter questions in personal injury litigation is to completely avoid asking specific questions. The reason has to do with the nature of discoverable information in civil litigation. Since all communications between the attorney and the medical expert are discoverable, some attorneys prefer not to tip their hand to opposing counsel by asking questions that might reveal their strategy or approach to the case. In addition, the doctor is the retaining party’s witness so leading questions in a cover letter may be deemed impermissible. Hence, some attorneys will not risk asking a specific question that could be deemed leading and result in the doctor’s answer being stricken from the report.
Those who take this approach do not want to be seen as influencing the independent physician’s opinion in any way. This can be especially significant if the case ends up in front of a jury because jurors are considerably less skeptical of medical experts’ independence. But, the detriment to not asking specific questions is that this approach relies solely on the doctor to glean the relevant information and issues that need to be addressed from the materials provided. Sometimes the issues to be addressed are obvious, but sometimes they are not.
The risk of not asking any specific questions is the report may not address all of the issues that need to be addressed. This is a very real possibility if no communication takes place with the expert concerning the issues of the case.
This approach for Worker’s Compensation may be a convoluted way to get to the same result as if questions were asked. Additionally, the concerns in a Worker’s Compensation case are not the same because there is no jury to worry about and there is no concerns about leading a witness.
Do you ask specific questions or do you let the doctor provide information to the doctor and simply ask for conclusions? Why?
At Medical Systems, we see a lot of cover letters! Many include questions in the body of the letter that are not included in the specific questions section. Unfortunately, this approach frequently causes problems because many doctors only directly answer questions in the specific questions section of the report. Thus, writers are often surprised when they ask a specific question in the body of the cover letter but the doctor does not specifically answer it.
The reasons for this disconnect between writer and expert are simple. Questions buried in the cover letter’s medical record summary may not be answered because not all experts read the cover letter’s summary of medical records. Why? Because they do not want to be influenced by the writer’s take on the claim. Additionally, many experts assume (rightly or wrongly) that the only questions they are being retained to answer are those that are posed in the specific interrogatives section and do not look anywhere but there for questions. Finally, some experts simply forget the questions that have been asked outside of the specific questions section by the time they dictate the report. Hence, they will often only be looking at the specific questions when they are dictating their general impressions and specific answers.
The bottom line is that if a writer wants a question answered, she should ask it in the specific questions section. The specific interrogatives section is your best opportunity to communicate directly with doctor. Doctors read cover letters with varying degrees of thoroughness. All doctors, however, read the specific questions section of the report. Therefore, the specific questions should be drafted carefully to elicit precisely the information sought – no more or no less. The last thing you want is to get an IME report back and find that the doctor did not address an issue that needed to be addressed.
What strategy do you use for cover letter questions? And Why?
In most cases, the cover letter is the first, last, and only time you will be able to explain the case to the IME doctor and to ask specific questions about the case. As a result, the cover letter is an important document. The question, however, is how important is the cover letter? How much of a difference can a good cover letter make? Can the cover letter determine the outcome of an opinion or even have any impact on the doctor’s opinion?
Like most things in the medico-legal world, the answer is not black or white. Cover letters matter more for some doctors than others: sometimes the cover letter can help shape how an IME doctor answers a question, sometimes the cover letter can precipitate a bad result, and sometimes the cover letter will make little difference in the IME doctor’s opinion. Nevertheless, there are some basic rules that can ensure the reviewing physician squarely addresses the relevant issues and maximize the likelihood of receiving a favorable opinion.
The most important feature of the IME cover letter is the specific questions section, often titled “specific interrogatives.” As a matter of semantics, there is no functional difference between the words “questions” and “interrogatives” though “interrogatives” at least feels more formal. The specific questions posed to an IME physician are often the only questions that an IME physician will answer directly so there is much utility in how the questions are drafted.
How do you approach cover letter questions? What is important to you in drafting a cover letter?