As a key element of the 1991 reform of workers' compensation in Massachusetts, legislators introduced the very controversial impartial medical examination procedure in an attempt to eliminate the often conflicting partisan medical opinions presented by the claimant and insurer. Among the purposes of having a "neutral" physician render the binding opinion on medical issues in dispute was to obtain an unbiased and by extension more credible opinion as well as to shorten and make less complicated the litigation process.
The legal and constitutional challenges to this procedure were outlined in the article this author prepared entitled, "The Massachusetts IME: Not Worth Emulating" appearing in The Journal of Workers' Compensation Summer 2000 (Vol. 9 No. 4)
I wrote that article from the perspective of a claimant attorney and I remain unconvinced that the impartial examination process gives the fact finder (Administrative Judge) a truer opinion of disputed medical issues or that it shortens the hearing/decision making process.
This article looks at the impartial examination from the vantage point of ten years of practice and with the benefit of four Massachusetts Supreme Judicial Court decisions1 and many dozens of Reviewing Board decisions.
I have solicited opinions from three camps, an attorney representing injured workers exclusively; a claims manager for a leading worker's compensation insurer and from the Senior Judge of the Department of Industrial Accidents.
The impartial examination procedure is set forth in M.G.L. c. 152 §11A which provides in pertinent part:
- When any claim or complaint involves a dispute over medical issues, the parties shall agree or the administrative judge shall select an impartial medical examiner from a roster maintained by the Department.
- The party requesting the hearing shall pay a fee (currently $350.00) for the examination.
- The impartial physician shall examine the employee and review the medical records submitted by the parties and issue a report. In the report, the doctor shall indicate whether a disability exists; whether it is total or partial and permanent or temporary and whether said disability bears a causal connection to any injury arising out of and in the course of the claimant's employment.
- The impartial report shall constitute prima facie evidence of the matters contained therein.
- No additional medical reports or depositions shall be allowed unless the administrative judge finds upon motion of a party, that the case is medically complex or that the impartial report is inadequate.
- Either party may depose the impartial physician for cross examination.
By regulation, 452 CMR §1.14, the parties prior to the examination may also submit hypothetical fact patterns and stipulations of fact.
Also by regulation the parties may "opt out" of the Section 11A examination in death cases; where the dispute is over a past period of disability; or where initial liability has not been established.
As the earlier article in The Journal suggested, the various legal challenges to the constitutionality and fundamental fairness of this statute have been completed. The statute, with some judicial fine tuning, remains an integral part of our worker's compensation system.
What then are the current problems and concerns?
Lack of qualified physicians to comprise the Department's roster is a growing problem. To be included, a physician must enter into an agreement with the Department of Industrial Accidents and be licensed to practice, be Board certified, have an active clinical practice and have no pending disciplinary complaints.
The low fee schedule ($350.00) is one of the factors in the drop off of doctors willing to perform examinations. An increase to $450.00 is currently being actively pursued.
For example, during the period 1995 to 1997 Massachusetts had anywhere from 510 to 581 physicians of various specialties under contract. By the end of June 2001 the number has dropped to 309. From July 1, 2000 to July 1, 2001 over 3700 examinations were conducted.
According to Senior Judge Daniel J. O'Shea, Jr., not only does the $350.00 examination fee deter doctors from participating, but he also finds a reluctance "by nature of their training as doctors to treat patients rather than be involved in the litigation process."
Attorney James Aven, a claimant's attorney, has an even stronger view on this issue, "The roster has been and continues to be dominated by physicians who do not regularly treat injured workers. I believe it is unlikely that active clinical practitioners would be willing to become impartial examiners even with monetary awards. Those willing to involve themselves are top heavy with insurer examiners, already familiar with limited patient involvement and the higher volume of "one time" evaluations."
Despite the relatively compact size of the Commonwealth of Massachusetts, regional areas such as western Massachusetts suffer from a paucity of impartial doctors. According to Aven, "Cases involving workers in western regions have a different track from the workers whose claims are heard in Boston because impartials are less accessible."
Any delay in scheduling an impartial examination will delay the scheduling of the hearing and ultimately the decision.
Is the impartial physician process more or less fair than the prior "dueling doctor" method of presenting medical evidence? As expected, opinions differ although there are areas of agreement.
Michael P. Kelley is Vice President and Claims Manager of A.I.M. Mutual Insurance Company in Burlington, MA. "Section 11A has proven to be an effective tool in bringing about fair and expeditious resolution to cases. This in turn has reduced the amount of litigation, but the downfall is that it is a make or break system."
According to Judge O'Shea, "While the Section 11A process may present difficulties for the litigator at trial, one of its purposes is to put in place a medical arbitrator so many cases that might have been tried are resolved in light of the impartial's findings."
Aven agrees. "The impartial report is a useful settlement tool. It often moves parties to modify previous positions. Judges are inclined to decide cases with reliance on the impartial examiner's opinions. The reports, I feel are less truly impartial, but more a useful tool to facilitate resolution."
Kelley shares this view also. "The impartial normally tells you what will happen and therefore has assisted in settling many cases which would have lingered in the system for months or years."
Attorneys specializing in litigating worker's compensation cases have had to adapt their strategy to deal with unfavorable or inconclusive impartial reports.
Since the impartial report becomes prima facie evidence and no other medical evidence can be introduced to rebut it, the challenge to the dissatisfied party is to find a way to declare the report inadequate and/or the medical issues complex. In conjunction with this attempt is the increased reliance on non-medical factors that go into the overall determination of whether or not a disability exists and whether or not it is total or partial; permanent or temporary.
In essence, the unintended result of trying to eliminate dueling doctors has led to a hearing process that has given rise to dueling vocational experts. A common scenario is as follows:
The claimant is a 54 year old carpenter with little or no formal education. His back injury according to the impartial physician permanently disables him from his former occupation, but leaves him capable of sedentary employment with limited standing, bending or twisting. He also needs the opportunity to change positions from sitting to standing once or twice an hour. He takes significant amounts of pain medication and will testify that he has difficulty sleeping.
At a hearing on whether he is entitled to total or partial incapacity compensation it is likely that both the insurer and employee will call a vocational expert to testify as to the claimant's ability/inability to obtain employment within his medical limitations.
Experienced compensation attorneys have learned to adapt to the challenges Section 11A have brought to the system. The constitutional challenges seem to have been exhausted. The Reviewing Board still will occasionally speak to what constitutes report inadequacy or medical complexity. Most judges at hearing, however, seem to err on the side of caution in allowing motions for additional medical evidence. The odds of reversal or remand on appeal increase upon the denial of these motions as opposed to the granting of them.
According to Senior Judge O'Shea, "Our original concern regarding the Section 11A impartial was that the reliance on a single medical report would discourage good lawyering. The reverse has proven to be true. Section 11A has fostered creative and imaginative advocacy recognizing that the medical findings alone do not represent the entire outcome of the case."
The challenges that continue to exist involve recruiting and retaining qualified physicians to fill the roster.
According to Aven, "It is rare that an impartial examiner ever acknowledges an awareness that his or her opinions may by law be the only medical evidence considered by the judge and that the treating physicians' records and opinions are excluded from the final decision. Many doctors seem to review the Section 11A exam as another "IME" but some understand the difference."
Ten years of experience with the mandatory impartial medical examination has led to a reliance on the report as an aid to settlement and in the less complicated cases, the binding opinion on medical impairment. Motions to allow additional medical evidence and increased reliance on vocational evidence are the two major changes in the way cases are now litigated. The Department of Industrial Accidents must strive to maintain a sufficiently staffed roster of unbiased physicians. If not, the delay in scheduling an impartial examination will prolong the dispute resolution process more so than the previous system of allowing the parties to present their own medical evidence.
Murphy v. Commissioner of the Department of Industrial Accidents, 415 Mass. 218, 612 N.E.2d. 1149 (1993).
Murphy v. Commissioner of the Department of Industrial Accidents, 418 Mass. 165, 635 N.E.2d. 1180 (1994).
Neff v. Commissioner of the Department of Industrial Accidents, 421 Mass. 70, 653 N.E.2d 556 (1995).
O'Brien's Case, 424 Mass. 16, 673 N.E.2d 567 (1996).