The impartial examination report is the cornerstone of the medical dispute resolution process at the Department of Industrial Accidents.  The §11A statute requires the impartial physician examiner to provide an opinion on diagnosis, causal relationship, and extent of disability and express other medical opinions sought by the parties or as requested by the hearing judge. The 11A exam process has been in place since 1991.  As we enter our 16^th year using the one medical opinion system, we need to engage in making this form of special medical evidence as complete, fair and responsibly delivered as possible. A tune up is needed.

 Since convening in 2006, the Massachusetts Bar Association Workers Compensation subcommittee on Impartial Examiners has recognized that, in some instances, the quality and content of the 11A reports fall short of the mark. Some 11A reports may be incomplete due to time or financial pressures. The MBA believes the paramount concern is that the injured worker, with whom no doctor-patient relationship is established by 11A, is nonetheless treated with the full dignity and respect she deserves.  The completeness of the report produced by the 11A examination process is critical to achieving this goal and to the process of evaluation by the presiding judge.

Both parties to the medical dispute are represented by counsel, who have submitted organized medical records to be reviewed, along with a series of facts presumed to accurately reflect the circumstances of the accident or injurious occupational exposure. Following these are hypothetical questions sought to be addressed by the medical examiner often concerning prior medical conditions and post accident activities.  By statute, the impartial examiner’s report is the only medical evidence generally admitted into the hearing record and will be given full weight.  Under limited circumstances, the hearing judge can consider other medical evidence in making her decision, but this is an exception to the rule. The 11A doctor’s role is crucial.

            The impartial physician’s report and subsequent testimony by deposition, if sought, are vital to a fair and prompt adjudication of an injured worker’s claim and the interests of those other stakeholders in the workers compensation system: the responsible insurers, self-insurers, or affected employers. The MBA Workers Compensation subcommittee believes that certain issues [1] in report writing are not consistently given proper attention.  For instance, questions concerning disability and causation are frequently not adequately addressed. Hypothetical questions are sometime overlooked. As a result, challenges to the admissibility of these medical reports are raised at the hearing. The hearings often occur some six to nine months after the medical exam has taken place. Frequently, depositions are then taken of the authoring physicians a very long time after the exam has occurred, or of the examining (IME) physicians, arranged by the insurer or of the treating doctors engaged by the employees. Thus the opinions of these various and additional medical experts are called upon to contribute their medical opinions to resolve the dispute.  The one- medical opinion system contemplated by our statute can instead be transformed into a hydra headed monster of litigation.

            Of course, this results in the already lengthy dispute resolution process being magnified disproportionately.  Injured workers are often left without adequate funds to support themselves or insurers are required to pay longer then they may be obligated to.  Other cases, which could reach the dispute resolution process more promptly, are significantly delayed and left waiting in the wings to be heard for weeks or months.

To spotlight this issue and engage in a constructive dialogue with physicians, The MBA Workers Compensation subcommittee is preparing, with the assistance of the Department of Industrial Accidents and the support of the Health Care Services Board, a series of in service training opportunities[2]. We plan to reach out to the community of impartial physician examiners on the roster established by the DIA. We begin presentations this fall and winter with NECOEM, as occupational medicine is well suited to understand and address the reporting requirements of the 11A system. The MBA will then continue a dialogue with physicians in different practice areas and throughout the state, especially geographic areas that are underserved. Three members of NECOEM are presently consulting with the MBA Workers Compensation subcommittee to develop its program: Dr. Robert Naparstek, Dr. Terence Doorly and Dr. William Patterson.

            In many circumstances, the medical treatment sought in the disputed case is delayed beyond the point where it is any longer useful to the injured worker.  Families may be affected by the stress of severe financial hardship. A significant issue and recurring challenge for impartial physicians is to determine the role a preexisting medical condition plays in the workers disability.  If the preexisting medical condition is significant, in many circumstances, the worker loses her case and faces the full financial burden of the disability.  The challenge for the impartial physician examiner is to determine:

1.      whether a preexisting condition exists

2.      whether it has a work related origin

3.      if it combined with the work injury

4.      if it is a major cause or minor cause of the disability

If the ultimate conclusion of the impartial physician is that the work injury no longer plays a major role in the current disability or the need for medical treatment, then the hearing judge will often conclude insurer has no further financial responsibility. The financial cost will be borne by the injured worker. 

In our presentations, we will offer examples of cases from a judicial standpoint to illustrate common problems presented by certain types of medical disputes and how various impartial physician examiners have responded with excellence. We will engage in a dialogue concerning those areas in reports where improvement is warranted.

The impartial physician examiner now receives a letter of instruction that has been revised this year by the impartial unit as a result of input of MBA members and administrative judges.  Please see sample letter attached.[3] We will be asking the doctors we address for input on this and whether a template should be developed to aid doctors in preparing their reports.

 An important case decided by the reviewing board of the Department of Industrial Accidents was Viera (March 2005). As a result administrative judges now must follow a defined analytical model in determining whether a preexisting condition has had a sufficient impact upon a disability claim sought by an employee or their need for medical treatment. Since the medical evidence presented by the impartial physicians report is presumed correct until rebutted, administrative judges look to the physician examiner for medical guidance. Without a clear explanation of the role of preexisting condition may play in a case, a judge may not be able to fulfill her obligation and other sources of medical evidence have to be requested.  In those circumstances, it takes considerably longer for a dispute to be resolved.

Consider the following illustrations:

First, a stonemason with degenerative disk disease filed a claim for permanent and total disability from the effects of a 2000 lifting injury. The physician examiner in 2002 offered an opinion which confirmed that while the stonemason’s back condition was permanent and he was disabled from gainful employment. As there was no analysis of the role of the preexisting condition the decision was not upheld on appeal. There was a failure to analyze the role of degenerative joint disease on the 2000 workplace injury.

Second, a corrections officer with a long history of both pre existing, non work related and pre existing, occupational knee conditions, injured his knee while separating prisoners during an altercation. The 11A doctor neglected to analyze the effect of the pre existing arthritic knee condition, thus causing over a year of extended litigation.

Third, a 60-year-old nurse, with DJD, sustained a low back disk injury and was seeking surgery, the need for which was disputed by the insurer. The 11A physician only commented on disability, not at issue in the dispute whatsoever, neglecting to advise the parties whether an L5-S1 diskectomy was warranted. As a result, an addendum report was required, causing a delay of 6 months.

CONCLUSION

 It is incumbent for the impartial physician to address all issues presented in an orderly and clear fashion at the time of the evaluation and to express a complete opinion in the body of the report that is furnished to the judge and the parties.  Without this, extensive and unnecessary litigation will surely ensue. The MBA believes that 11A physicians provide a great public service to the workers compensation system. With constructive feedback from bench and bar, 11 A reports can be made even better. The MBA look forward to working with NECOEM to launch this project.