Disability Insurance Claim Articles

What To Do About The Independent Medical Examination?

By Jeffrey L. Greyber, Esq.

In the insurance context, an Independent Medical Examination (“IME”) rears its head most often with respect to disability claims. The IME is a claim investigation tool for the insurance company, whereby the carrier is attempting to assess the claimant’s physical condition independent from a treating physician’s opinions. Many of my disability clients are quite wary of the insurance company’s IME request … not because my clients’ physical conditions are somehow illegitimate (indeed, I only represent folks with legitimate ailments), but because of the not-so-secret reality of IMEs typically being a trap. More specifically, the IME is typically an insurance company’s attempt to lay a foundation for claim denial, and the IME physicians retained by insurance companies typically know exactly what the insurance company wants him / her to write. So, what do we do about the good ol’ IME?

Well, let’s first discuss the legal backdrop of a policyholder’s compliance with an IME request. Under most (if not all) disability policies, insurance companies are contractually entitled to require a policyholder to undergo an IME. That said, however, the logistical (e.g., date, time, location) and practical (e.g., allowing a claimant to be accompanied by someone else who can bear witness to the IME) considerations surrounding an IME need to unfold in a reasonable fashion in order for the IME request to be valid. Indeed, the Supreme Court of Florida has realized as much by relaxing the consequences of a policyholder’s non-compliance with a carrier’s IME request:

[W]e clarify the issue presented by rephrasing the certified question as follows:

When an insured breaches a[n] [independent] medical examination provision in a[ ] [disability insurance] contract, does the insured forfeit benefits under the contract without regard to prejudice? If prejudice must be considered, who bears the burden of pleading and proving that issue?

We answer the first portion of the certified question in the negative. As to the second portion of the certified question, we hold that the insurer as the defensive party pleading an affirmative defense has the burden of pleading and proving prejudice.

 

State Farm Mut. Auto. Ins. Co. v. Curran, No. SC12-157 (Fla. Mar. 13, 2014). ¹

Despite the Supreme Court of Florida’s recognition that a policyholder’s non-compliance with an IME request does not automatically sound the claim death knell, I suggest that you oblige the carrier’s IME request … but under certain conditions of your own.

First, it is well within reason for you to request that an IME be conducted within a comfortable geographic radius from where you reside; e.g., if you live in West Palm Beach, for example, you do not have to attend a Miami IME. This is often quite important for those who are physically ailing and incapable of making (or hard-pressed to make) a two hour drive in terrible traffic.

Second, it is well within reason for you to request that an IME be conducted on a date and time that is mutually convenient for you and the IME physician. Insurers will quite often unilaterally schedule your IME. Respond to the carrier’s unilateral scheduling, in writing, by providing the carrier with a handful of dates that work well for you after the date unilaterally scheduled by the carrier.

Third, it is well within reason for you to have the IME witnessed. You may wish to have a significant other or friend present during the examination. You may wish to have the IME videotaped. You may wish to have the IME transcribed. You may wish for all three to occur. It is my opinion that all three are appropriate, and you should discuss same with the carrier in writing before your IME. Regarding videotaping and / or transcribing an IME, you should ask the carrier to arrange for same, as it is hornbook that insurance companies are to bear the cost of claim investigation.

Fourth, it is well within reason for you to demand that the carrier provide you with the IME physician’s written examination results / findings. More often than not, you will need these written results / findings in order to rebut same, because, more often than not, the results / findings will be skewed in favor of the insurance company’s claim denial.

These are just a few tips on IMEs. Navigating the IME process (or the claim process as a whole, for that matter) can be tricky … it would behoove you to consult with legal counsel regarding same. And if your insurance company plays hardball with respect to any of the above requests, it would absolutely behoove you to consult with legal counsel regarding same.

Disability Insurance Claim Articles