Workers’ Comp and the

Toxicology Independent Medical Exam

(IME)

Brent T. Burton, MD, MPH, FACMT, FAACT

WHAT IS AN IME? •  An IME is a medical exam conducted to determine the

cause, extent and medical treatment of a work-related or other injury where liability is at issue.

•  An IME is a one-time exam performed by a physician who does not have a treatment relationship with the patient.

•  A doctor-patient relationship is not established and medical treatment or advice is precluded (except in the case of

life threatening conditions).

PURPOSE OF THE IME

•  Compensability – Work Related? •  Apportionment •  Impairment Rating •  Treatment Appropriateness •  Status – Maximum Medical Improvement •  Fitness for Duty

CLAIM PROCESS Role of the Toxicology IME

Claim Filed

Insurer Review

Claim Denied Appeal IME Hearing

Claim Pending IME Insurer

Review

Claim Accepted

Medical Treatment IME*

*Impairment Rating *Treatment Issues

IME REFERRAL SOURCES

•  Insurance Claim Administrators •  Employers or Third Party Administrators •  IME Companies •  Attorneys •  Government Agencies •  Attending Physician (Indirect)

WHY PERFORM IME’s?

•  Intellectual Challenge •  Flexible Schedule •  Nobama Care •  No Medicare •  Simple Billing •  Minimal Overhead •  Administrative Support •  Financial Gain

COMMON EXPOSURES •  Inhalation

o  RADS, Asthma o  Asbestos, Silica o  Gases and Vapors

•  Metals: Lead, Mercury, Chromium, Arsenic •  Pesticides: Organophosphates, Glyphosate, 2,4-D •  Sensitizers: Isocyanates, Latex, Mold, Animals •  Cancer •  Neurologic: Neuropathy, encephalopathy, Parkinson’s •  Alcohol & Drug Impairment •  Food Poisoning •  Fads: SBS, MCS, “Toxic Mold,” Porphyria, HMP/Chelation

IME CHALLENGES •  PreDiagnosis •  Motivational Factors/Cooperation •  Peer Review •  Deposition and Hearing Testimony •  Attorney Interference

o  Coaching o  Non-cooperation.

•  Records, Questionnaire, Diagnostics o  Exam Limits o  Observation /Recording

ENVIRONMENT OF BIAS

“The totally biased IME doctors are willing to say whatever they think the people paying them want them to say."

Sharpe Law Firm – Seattle, WA

".......many IME doctors appear to skew their reports in favor of the defense.“

Aaron Larson – Attorneys-USA

“There is nothing independent about it. The insurance company hires a doctor it knows will minimize your injuries.”

Schneider & Madsen Law Firm – Willmar, MN

What attorneys tell their clients:

IME EXAMINER REQUIREMENTS

•  State Medical License o  Reciprocity not always authorized for IME’s.

•  Malpractice Insurance •  State Certification as IME Examiner

o  Application, CME, Testing o  Agree to abide by rules.

IME PROCEDURE •  Receive Referral

o  Schedule 2 Hour Appointment o  Patient (Examinee) Registration o  Send out Confirmation w/ Questionnaire o  Diagnostic scheduling

•  Exam Commencement o  Introduction, Purpose and Referral Source o  No Doctor Patient Relationship o  Format of exam, i.e. H&P, diagnostics. o  Release authorizations, if required

Exposure History

•  Standard Medical History Format o  Supplement with Health Questionnaire o  Lifetime chronology o  Characterize all past medical encounters

•  Symptoms •  Diagnoses •  Treatment & Response

o  Lifestyle/Behavioral characteristics •  Tobacco, alcohol, drugs, hobbies, etc.

Exposure History •  Focused Work History—Learn the Job!

o  Type of workplace o  Job description o  Use of each substance o  Protective equipment o  Labels and/or Material Safety Data Sheets

•  Are Symptoms Consistent with Exposure? o  Character

•  Irritation •  Intoxication •  Toxic Syndrome

o  Timing—Relationship to exposure o  Duration

MSDS

Material Safety Data Sheet ●Product Name ●Hazardous Ingredients ●Physical Data ●Fire and Explosion Hazards ●Health Hazards ●Reactivity ●Spill Procedures ●Special Protection ●Precautions

Exposure Assessment

•  Biological Indicators o  DOI lab studies, e.g. CO o  Direct measure, e.g. blood lead o  Target organ markers, e.g. PFT’s, Immune response.

•  Workplace Environment o  Industrial Processes o  Industrial Hygiene Survey/Workplace sampling o  OSHA Inspection/Citations o  Site Visit

Objective Data

Analysis of Causation

I. EXPOSURE

II. DISEASE

III. RELATIONSHIP

IV. EXCLUSION OF OTHER CAUSES

• Was there a toxic exposure in this case?

• What evidence supports a diagnosis?

• Did this exposure cause this disease? • General Causation? • Specific Causation?

• Have alternative etiologies been considered?

Association ≠ Causation

Exposure ≠ Disease Pb

Disease ≠ Exposure Mesothelioma

Exposure + Disease ≠ Causation CO

Causation Caveats

Documentation of Disease

•  Consistent Symptoms •  Objective Findings

•  Physical Exam •  Diagnostic Studies

•  Diagnostic Criteria

Exposure v. Disease Relationship

Valid Exposure-Disease Relationships: n-Hexane v. neuropathy Asbestos v. mesothelioma

Benzene v. AML TDI v. asthma

Invalid Exposure-Disease Relationships: Sick building syndrome Multiple chemical sensitivities Chemically-Induced Porphyria Fibromyalgia

General Causation Has a valid causal relationship been established between exposure and this specific disease?

Exposure v. Disease Relationship

Is there adequate documentation that an exposure of sufficient intensity and duration (i.e., dose) can cause disease or injury in this case?

Specific Causation

New onset? Or exacerbation of preexistent injury/illness?

Dose Response Relationship “Alle Ding' sind Gift, und nichts ohn' Gift; allein die Dosis macht, daß ein Ding kein Gift ist.“

Paracelsus (1493-1541) Father of Modern

Toxicology

(“The dose makes the poison.”)

Alternative Causes

Has a thorough and appropriate differential diagnosis been applied and each potential alternative diagnosis excluded?

Alternative Considerations Sources of common symptoms often attributed to occupational diseases:

Odor Perception Smoking Substance Abuse Infection Allergies Psychological Factors Underlying Medical Conditions

IME REPORT Discussion Format •  State conclusions (opinion)

o  Avoid hedging or “wiggle words” o  “I feel, believe, consider” etc. o  “consistent with”

•  Characterize exposure. •  Medical data that support or refute the proposed diagnosis •  Relationship between exposure and proposed diagnosis •  Alternative conclusions, i.e. differential diagnosis •  Respond to specific “legal” questions posed by requestor

o  Medical-Legal Connection

Medical-Legal Connection Work Cause/Contribution

Varies by State Statute

•  Proximate Cause, Major Cause, etc. •  Medically Stationary, MMI, etc. •  Combined Condition (apportionment) •  Impairment Rating—e.g. AMA Guidelines

IME REPORT

•  Potential Follow-up Requirements o  New records for review o  Attorney Consultation o  Concurrence letters, addendum reports o  Deposition – defending the IME report o  Hearing -- ALJ’s, attorneys & witnesses

CASE OUTCOME?