Your Disability Claim and Independent Medical Examinations

If you have a pending ERISA disability claim, the plan administrator or insurance company may schedule an Independent Medical Examination (“IME”) for you.  Your first question may be, “do I have to attend?”  While every person’s situation is different, and you should consult with your attorney about the specifics of your case, it is recommended that you comply with reasonable requests by the administrator to have you evaluated in person.

Why, you ask?  For starters, most disability policies contain a provision that gives the administrator the right to have you examined.  Failure to comply may result in the denial of your claim.  For example, in Burke v. Pitney Bowes Inc., 392 F. App’x 570, 572 (9th Cir. 2010), the Ninth Circuit Court of Appeals held that it was reasonable for the plan administrator to request a second IME of the plaintiff and that the plaintiff’s refusal to attend prejudiced the administrator’s ability to decide the claim.  The Court found that the termination of disability benefits based on the plaintiff’s failure to attend the IME was not an abuse of discretion.

Second, if your matter ends up in litigation, it is important that you appear reasonable and cooperative to the judge.  The focus should be on the merits of your disability claim, not on whether you should have attended an exam.

If you have an IME, there are several things you can do to ensure the best outcome.  These include:

  • Awareness.  It is not uncommon for an administrator to conduct surveillance of you in the days before an IME and the days after.  Be sure that your activity level outside the home is consistent with what you reported to the administrator.
  • Preparation.  You’ll want to make sure you have your recent medical records and test results that you can provide to the IME doctor (make a copy of anything you give the doctor).  If you are represented, your lawyer may send these records to the doctor in advance of the appointment as well as request any intake form you’ll be required to complete at the appointment so that you can complete it in advance of the appointment.
  • Review your medical history and medications. Do not assume that the IME doctor will already be familiar with your file. Nearly all IMEs will begin with an interview that will ask you about your medical history, your disability injury or illness, your symptoms, and prescriptions.  Be prepared to discuss all these things and review documents you need to in order to refresh your recollection.  If possible, bring to the IME a list of your medications, dosages, and medication side effects.  If you are represented by a lawyer, make sure you check with them about any documentation you bring to the appointment.
  • Be on time. If possible, have a friend or family member drive you to the appointment.  The administrator may also arrange for transportation if you are unable to get yourself to the appointment.  Check the traffic conditions before the scheduled IME so you allow enough time to check in at least 15 minutes before the scheduled appointment.
  • Witnesses or recording. If possible, it is ideal to have your IME videotaped or tape-recorded.  Some administrators and doctors refuse to allow this, and if so, you should still move forward with the exam.  Remember, in California it is unlawful to tape record a conversation without all-party consent.  CA Penal Code § 632 (definition & penalty), § 637.2 (civil damages).  If the doctor allows someone to attend with you, that person should take notes of the exam.  This includes start/stop time, what was discussed, the physical exam, and anything else noteworthy.
  • Be courteous and honest. While you might feel some apprehension about attending an IME, do not assume that the IME doctor is against you.  Be respectful and courteous.  Do not exaggerate or downplay your symptoms.  If asked to describe your activity level or limitations, do not describe your worst day or your best day.  If your disability produces good days and bad days, do your best to approximate how many of these days you have and your average activity level.
  • After the exam. Immediately after you get home, document as much as you can remember about the exam.  If there are any discrepancies between what happened and what the doctor reported, you want to be able to refer to your notes.
  • Your treating doctor(s). If possible, set up an appointment with your own treating doctor a few days before or after the scheduled IME.  Your doctor should conduct a full physical examination so there is additional documentation of your condition.
  • Obtain a copy of the report. Depending on where you are in your disability claim (i.e., currently getting paid or in the appeal process), an administrator may not provide you with a copy of the doctor’s report unless and until they deny your claim.  Regardless, you or your attorney should ask for a copy of the report.  If the report is not favorable, you or your attorney can obtain other evidence to rebut the doctor’s findings and conclusions.

If you have an upcoming IME or a denied disability claim, it is important that you consult with experienced ERISA disability claim attorneys.  The team at Kantor & Kantor, LLP may be able to help.  Contact us for a free case evaluation at 888-569-6013 or use our online contact form.

 

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