September 2005 Newsletter
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Should your examiner
be asked to determine
disability status?
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September 2005 Newsletter
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Psychiatric IME Evaluations Should your examiner be asked to determine disability status? |
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The following is web version of a newsletter which will be distributed to claims examiners and disability specialists in September of 2005. It was authored by Leonard Grossman, Ph.D., a psychologist and diplomate of The American Board of Forensic Examiners.
 Should your psychiatric IME examiner be asked for a formal ruling on disability status? Most cases winding up in litigation get there because of conflicting opinions on the available medical evidence: The claimant's care givers steadfastly maintain their patient is disabled; the insurer's IME examiner finds insufficient objective evidence of psychiatric impairment and the claim is denied. To an impartial jury, it may seem that both sides in an admittedly adversarial situation have a financial stake in manipulating the facts to suit their own special interests.
Whether or not you ask an examiner to determine disability status as defined in the policy can have a profound effect on a case which ends up being litigated. In recent years, many insurers have moved away from asking examiners to rule directly on disability status, although at least one major carrier still requires all their examiners to address this question head-on. While this is not an absolute "right or wrong" issue, insurers should be aware of the strengths and weaknesses for each approach.
 Have your examiner limit commentary to the severity of any psychiatric or cognitive impairments found and their functional effects. The principal downside of asking an examiner to rule on disability as it is defined in the policy contract is an ethical one. This arises because you are essentially requiring that he or she make both a clinical and an insurance judgement. Since there is already an argument to be made that an IME examiner may have a pro-insurance bias because they were paid by the insurer, having the examiner also rule on policy issues further compromises their credibility and gives the appearance of ethical conflict, even though none may actually exist.
On the other hand, if you fail to ask your IME examiner to rule on disability status, it can be legitimately argued that the insurer is making a decision that should really be made by a clinical professional. One way to avoid any appearance of bias and avoid this "Catch-22" dilemma is to instruct your examiner using the following type of referral question.
The above question allows the examiner free reign to comment on clinical issues and even permits linkage to occupational issues. But it correctly draws the line between clinical and contractual issues, and does not place the examiner in the uncomfortable position of interpreting insurance policy language as it applies to disability status.
Limiting Occupational Commentary
If your examiner completely ignores the relationship between the impairments found and occupational issues, your report may fail to furnish sufficient information to make a disability eligibility determination. For example, if your examiner's commentary was restricted to opining that "Testing confirms that Dr. Smith suffers from mild short-term memory loss," you could be left trying to figure out exactly what "mild short-term memory loss" means, and might not grasp just how profound such an impairment would be if, for example, Dr. Smith worked in a demanding specialty field such as anesthesiology.
Although you can utilize an in-house professional consultant to interpret the findings, the issue might be raised later in litigation as to why you did not ask the examiner (who saw the claimant first-hand) such questions in the first place. It's also been my experience that it's virtually impossible to get a report from an examiner which says nothing of occupational consequence in a disability IME.
One way to solve this problem is to instruct the examiner to relate any levels of psychiatric/cognitive impairment found to the types of executive functions essential to the occupation in question without making an occupational conclusion. This would allow your examiner to opine: "Testing confirms that Dr. Smith suffers from mild short-term memory loss, an impairment which would severely compromise his ability to function competently in an occupation such as anesthesiology." While this may be equivalent to a "defacto disability finding," the language here is strictly clinical in nature and does not cross the line into extra-clinical insurance areas.
For More Information
Sincerely,
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