Defending The IME

With the passage of Ontario’s auto insurance legislation under Bill-198, insurers may be tempted to revert to dependence on Designated Assessment Centers (DACs) and forego the opinion of Independent Medical Examiners (IMEs). Certainly, the legislation spotlights DACs, making their decisions carry far greater weight and giving them immunity from litigation. As insurers look to drive down claims costs and reduce fraud, they should not be swayed to a system that may cost them more and be less fair to all parties involved.

The Independent Medical Examiner (IME) is, as with the DAC system, performed by specialists of varying disciplines. As many IME specialists are also registered DACs, the difference between these processes might, at first blush, appear to be quite moot. In fact, nothing could be further from the truth: a DAC is quite simply the “court of last resort”. Notwithstanding this fact, legislation is now on the books to raise the profile and importance of the DAC system via Ontario’s Bill-198.

While the legislation looks to put more insurer dollars towards the direct well being of the claimant, reducing the role of the IME could prove detrimental for both claimants and insurers in the long run. Historically, many of the well-regulated DACs have not responded in the timely manner of the IME producers. Additionally, the cost of the DAC often outweighs that of the IME – given that the same disciplines or even the same specialists are often involved – this is an anomaly that in itself drains money from claimants.

Balancing expertise

It is recognized that, from time to time, IMEs can evolve into a “battle of the experts”, but I suggest that, on balance, all parties gain from the applied expertise of more than one specialist. Surely the DAC process can only gain by the addition of expert specialist opinion to the medical brief it reviews prior to the actual examination? Such added value would, I believe, serve to reduce fraud, which Bill-198 specifically addresses.

As a former claims handler myself, I can certainly recall the real impact that IMEs have in assisting in bringing about a settlement: each side considering the other’s strong and weak points to reach an equitable decision. That is surely what “settlement” is all about. To simply eliminate this availability of expertise is unfair to all parties. In my experience, it is not unusual for a claimant to actually request that a specialist conducting an IME consider treating him or her from then on. Although this is not possible, it is hardly an indictment of the expertise, impartiality or sincerity of the so-called “insurance doctor”.

While the drive to assist the claimant is both admirable and necessary, the rights of the insurer (and by extrapolation, the rights of all its other insureds) cannot be ignored. Take, for example, a soft tissue injury which has been found by a specialist to be exaggerated or have no explicable causation. It is not unusual for the “injury”, in the absence of any other “symptom logy” to migrate into the realm of the subjective, appearing perhaps as a psychological or psychiatric complaint. Although this is not the norm, I do not believe there is any claims handler who has not seen some instances of this.

In such a circumstance, the insurer is faced with the potential of a subjective (and hence hard to prove or disprove) claim that may continue unabated. In such instances, this situation is best addressed not by a “court of last resort”, but rather by a definitive IME. Conversely, where the claimant has indeed suffered a non-physical (and perhaps less apparent) injury, this can also be confirmed by the same methodology and the claimant’s injury is properly addressed and the insurer is able to reserve the file accordingly.

Fairness factor

I believe that, rather than elevate the DAC system, Bill-198 may be better focused in mandating that IMEs be unbiased and, if necessary, licensing IME providers with a “zero tolerance” formula. In such an instance, any biased examining specialists, whether they be insurer or claimant-oriented, would surely get the message. This fairness factor might, for example, be adjudicated by a medical ombudsman, designated by the Financial Services Commission of Ontario (FSCO), or better yet self-monitored by the industry.

Under the new legislation, DACs would be immune from litigation. This is another perfect example of how insurers may be forced to pick up unnecessary costs. What of the head injury claim that is ratified, albeit incorrectly, by the DAC? Where is the appeal? Where is the second opinion to which all are entitled? Who would pay the cost of an incorrect, one-off diagnosis?

The IME system provides a barrier against misdiagnosis, fraudulent claims and a platform for the truly injured claimant to be heard. The anti-fraud and other provisions of Bill-198 should target the main perpetrators of unreasonable expense and I suggest that to eliminate or reduce the role of the IME would be a disservice to insurer and claimant alike. The industry would lose a cost and time effective method of claim assessment and the claimant would lose the opportunity to be assessed without having the door slammed shut.

The claimant

Regardless of the type of medical assessment, there is another factor to consider: the duty of the claimant. This is often overlooked by legislators, counsel and even some claims handlers who do not want to rock the boat. The claimant has a duty to be honest in his/her response to questions posed by the examining specialist. The claimant must make every legitimate effort to attend an assessment that has been communicated to them and agreed upon. Last minute cancellations or no-shows serve only to drive up the cost to the insurer and all policyholders. Furthermore, the refusal to provide all relevant medical records, where a release has been properly obtained, has exactly the same effect.

The medical assessment process should not be a battleground that eats up dollars better spent. It should be a cooperative, non-punitive and fair process that slams no door shut, but rather examines every aspect of a claimed injury.