Fall 2001, Vol. 9, No. 1

Psychiatric Disability

Worker's Compensation IMEs—Part 1

By C. Donald Williams, MD, CGP
Yakima, WA

Introduction

Industrial insurance was instituted to protect workers from the devastating impact of workplace injuries, by ensuring that they would receive medical care as well as some degree of financial support, typically 60-67% of their wages, while recovering to the point that they could return to work. In return for this coverage, the employers are protected against all lawsuits related to the injuries, i.e., negligence claims. Determining what medical conditions are causally related to specific industrial injuries and determining what medical treatment is appropriate is the province of Independent Medical Evaluations (IMEs).

This essay will describe the guidelines I have found to be most helpful in the development of my practice of providing Psychiatric IMEs in Worker's Compensation claims. The practices outlined serve several purposes:

• Understanding the assignment;
  
• Negotiating the terms of the evaluation to ensure that the evaluator and the referral source are in agreement with the extent and cost of the assessment;
  
• Determining whether the evaluation will require testimony or deposition; and
  
• Practice management guidelines that ensure timeliness and efficiency in report production.
  

Understanding the Assignment

The client may be an attorney, an insurance company, or a state agency. It is a good practice to require an assignment letter, outlining the issues that must be addressed. The assignment letter typically is between two and four pages long, and it may or may not include a summary of the history of the case. It is customary for the client to specify 6-8 requirements that must be satisfied, including questions that must be addressed in the report. Typical examples are outlined in the table.

1. Please provide a history of the injury and subsequent events, according to your usual psychiatric practices.
   
2. Are there any psychiatric conditions that are more probably than not a result of the injury in question? If so, please list them utilizing the DSM-IV multi-axial format, and provide the basis for your conclusions.
   
3. Do any of the psychiatric conditions that you have identified require further treatment? If so, please outline your treatment recommendations and the time required.
   
4. If the psychiatric conditions you have identified do not require further treatment, is the claimant fixed and stable?
   
5. Is the claimant capable of returning to work on a full time basis at his/her original position? If not now, when might the claimant be able to return? Is the claimant capable of returning to work in any position?
   
6. Would vocational services likely be of assistance in helping the claimant to return to work?
   
7. What category of mental health impairment best describes X's current psychological state, assuming fixity of condition?

Negotiating the Terms of the Evaluation

The client should be prepared, in general terms, for the anticipated cost of the evaluation and report. Fees in the Worker's Compensation arena, including the patient evaluation, that exceed $1,200 are only rarely cost effective for clients. Typical charges for a 10-15 page report and evaluation would be in the $500-750 range. It is important to understand the goals and objectives of the client, so that time is not expended (and billed for) that is unproductive.

It is wise to require a 7-day notice of cancellation for hearing testimony and depositions, with a full retainer requirement for new clients. A sample retention letter is included for reference.

Court Testimony

Determine whether hearing testimony based on the evaluation is expected. When testimony may be required, the written evaluation should include an exhaustive recitation of the medical records to date, including relevant portions of non-psychiatric medical records and reports as well as records generated by mental health professionals. This practice is crucial to establishing credibility as an expert witness, and provides an understanding of the development of symptoms of depression, anxiety, and pain complaints. It also provides an opportunity to spot discrepancies in the history provided by subsequent evaluators.

In other words, always do own your research with access to original source material. It is commonplace to discover errors in quotation that are perpetuated by a failure to examine primary records. These include initial accident reports and progress notes, as well as laboratory and imaging studies.

Examine the records for contradictions and inconsistencies. Scrutinize records for bias—the absence of a neutral professional tone. Work to maintain neutrality in your own review. The purpose of your evaluation is to determine the truth of the matter, not to be an advocate. Determinations of causality are key in worker's compensation cases, as responsibility for medical care, disability payments, and time-loss payments ride on those determinations.

Utilize the DSM-IV, and adhere closely to the formal criteria. Think of telling a story about the subject, as if you were a novelist. Your task is to present the developmental history and to describe events and the impact they have on personality development and function. Real life is complex, so if you find cliches in your writing, take another look at the facts and your interpretation of them.

State which diagnoses existed prior to the injury, which were aggravated by the injury, and which are causally related to the injury. Support your conclusions by facts and reasoning—they cannot simply be opinion and prevail.

When giving testimony you will be asked for the basis of your opinion, and how you arrived at your conclusion. The hearing judge evaluates the quality of testimony—examining it for weakness in reasoning, including lack of foundation. An effective practice is to consider alternative conclusions, and to explain specifically why you selected one over another. As your report quality improves, and your testimony becomes more coherent and fact based, the cross examination will become briefer. Remember that you are a seeker of truth, and not an advocate.

All parties benefit from competent expert opinion. Not only is it unprofessional to shade findings according to the contracting party, it also makes the legal process less efficient because it fosters unnecessary litigation. Consider the impact of an expert providing a biased opinion in a case that persuades a client to litigate. The matter will be taken to trial, with all the attendant expense, but the result most likely will be a finding for the opposition. The client has devoted considerable time, effort, and expense in a doomed cause, unnecessarily. There is little likelihood that the expert will be retained in the future.

Practice Management Guidelines

It helps to have support staff, and it is essential if the goal is to produce significant numbers of quality reports efficiently.

Scenarios of practices at three different stages of development

1. You are starting out in practice, consult to an agency part time and do 15-20 hours per week of psychotherapy in your new office practice. You handle calls with an answering service and a cell phone. You do your own scheduling. You contract out the posting of accounts and bookkeeping. You type your own referral letters on your laptop. This works fairly well, because you can use open hours to handle the paperwork, and it keeps it simple, except for the hassles with managed care.

2. You have been in practice for a little longer, and do between 35-45 hours of direct patient care per week. If you are in a clinic, billing and scheduling are handled for you. If you are in solo practice, you probably have someone to answer the phone in addition to an answering service, and have someone post accounts, collect money, and send out statements. (If you do the clerical work yourself, you are putting in at least an additional 10-15 hours per week, making for a brutal schedule, and getting paid about $15 an hour for the pleasure. Let us assume you have mastered your masochistic tendencies, and have paid help.) For transcription, you may have retained a contract typing service, particularly if you are sending many letters to referral sources, and of necessity if you are dictating your case notes. If your office person is versatile and energetic, they may handle the transcription in addition to the billing, but it is a stretch, and they are likely to burn out.

3. You already have a busy full time practice. You become interested in performing IMEs privately, and are willing to provide depositions and testify at hearings. The IMEs require a review of 3-5 inches of disorganized medical records, sent to you by an attorney and bound together by two heavy rubber bands. The files are out of order, and there are often two or three duplications of individual records, i.e., photocopies of original records, and then photocopies of the same records off microfiche.

Your choices

1. You can sort through the records and organize them yourself—which will take 2-3 additional hours. Question: how are you going to bill for that time?
   
2. You can ask your solo office help to do that—she/he can do it occasionally, but not on a routine basis because they are already busy with other tasks.
   
3. You can hire additional part-time help to manage this and other lower level office filing functions.

The best choice may shift from "a" to "c" over time as your practice matures. For the new practitioner, choice "a" may be most cost effective and appropriate—at least for a time. However, if evaluations and IMEs become a significant part of your practice (and why do them otherwise?) additional office help will prove to be essential. Your staff should book the evaluation and ensure that records are received in time to organize them in a three-ring binder with a table of contents. You will then be prepared to conduct the interview, and then dictate the report within two days and send it to transcription. I suggest two days because the material is fresher, and it is easier to be efficient with the dictation. At an intermediate practice stage, choice "b" may be the correct one. Your single office staff person can help with the organization of the records, but you will have to utilize commercial transcription services. For the fully developed practice, choice "c" is the best and only choice. You will require on-site transcription, in addition to the office-manager. If the transcriptionist is full time, they may have their duties split between file organization, general file maintenance, and transcription.

Worker's Compensation evaluations undertaken for the purpose of litigation are significantly more complex than those that are simply consultations for treatment purposes. This complexity arises from the need to comprehensively review the development of the diagnosed mental health conditions with the aim of establishing whether the conditions pre-exist the injury, were aggravated by the injury, or are causally related to the injury. To accomplish this requires a comprehensive, verbatim review of the history and a specific consideration of alternative hypotheses. It is usually necessary to account for the impact of trait disturbances or personality disorders on Axis 2, because of their interplay with the injury. Presumed Axis 2 disorders often appear more severe when accompanied by Axis 1 conditions—something often overlooked in psychiatric evaluations, but a factor about which the DSM-IV offers cautions.

In order to provide obviously superior work at a cost that is feasible for the client, practices that emphasize efficiency are mandatory. Keeping a time card logged to the minute is a good practice, because it provides a basis for rational billing and serves as a self-management feedback tool. Over the last 12 months, my time required for report production that incorporates a discussion of causality and record review ranges between 35 minutes and 225 minutes, with the average/typical report requiring 70-100 minutes. The first time I undertook a comprehensive IME in which I arranged all the material it took 7 hours!

Part 2—Next Bulletin issue

Fragments of sample IMEs with commentary will be presented in Part 2 of this essay in the next issue of the Bulletin. (It may appear earlier on my website.)

 
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