Understanding Bias in Workers' Comp Medical Exams

Andrew E. Greenberg

ANDREW E. GREENBERG has extensive litigation experience in commercial, general casualty, and workers' compensation matters and is a recognized authority in the field of Pennsylvania workers' compensation law. Mr. Greenberg has been an author and lecturer for the American Bar Association, the Pennsylvania Bar Institute, The Legal Intelligencer, The Pennsylvania Law Weekly, The Pennsylvania Defense Institute and The Pennsylvania Self-Insurers' Association. He regularly appears on the television program "Law Journal" and...

Understanding Bias in Workers' Comp Medical Exams

Andrew E. Greenberg, The Legal Intelligencer

August 3, 2015

A July 28 article in Pennsylvania Law Weekly titled “The Unavoidable Bias of an Independent Medical Exam” discussed the inherent issues with medical exams in the workers’ compensation setting.

The reality of workers’ compensation life is that “bias” is rampant in the system–-especially when it comes to medical proof presented in litigated matters.

That inherent bias should be scrutinized in full context.

It is important to recognize, first, that the phrase “independent medical examination” does not presume to connote “impartial” medical examination. Rather, the reference term “independent” refers to an examination that is independent of a doctor-patient relationship—that allows the examining physician to disclose findings and opinions to a third party.

Indeed, an independent medical examination can be requested by a defendant or by a plaintiff in the context of a personal-injury claim.

So, the underlying theme of the subject article—that the reference “independent” is an inaccurate one—is itself inaccurate. An examination requested by a defendant in a workers’ compensation matter pursuant to the statutory authority set forth in Section 314 of the act, is independent because it does not result in the establishment of a doctor-patient relationship.

It is also important to recognize that because the vast majority of work injuries are administered quickly, and without the need for litigation, the kind of independent medical examination that is the subject of the referenced article is truly a rare occurrence.

Regardless of whether it is an independent examination or a treating doctor examination, the fact is that in the context of a litigated workers’ compensation claim, there will always be some form of bias when a medical professional is asked to assess the physical or emotional condition of an employee asserting a claim in a disputed workers’ compensation matter—no matter if the professional is retained by the claimant or the employer.

For example, when an injured worker is directed to an employer’s panel list of health care providers for treatment necessitated by an apparent work injury, the panel provider, whether he or she is a physician or a physician’s assistant or physical therapist, arguably has a bias for continuing to treat the individual during the 90-day period in which the injured worker is constrained from receiving treatment outside the employer’s panel.

It is rare that a panel doctor will announce, following an initial consultation, that the employee did not suffer an injury or does not require treatment or sought to present a fabricated claim. Rather, in nearly every instance, the provider will accept the worker’s contention at face value and will commence treatment even in the absence of any pathology.

One could easily conclude that the panel provider has a financial bias or financial incentive to do so—by accepting the worker’s complaints, the provider is able to offer treatment and to generate revenue for upwards of three months, the panel provider period established by the act. Indeed, the panel provider has no financial incentive to immediately declare the alleged injury groundless in the first instance or fully resolved in the second instance. Rather, the provider has every financial incentive to continue treatment through the provider period.

The so-called treating physician, referenced by the two attorneys who authored the article, also has a bias in litigated or contested workers’ compensation matters.

First, the bona fide primary care physician or family physician will, by virtue of the nature of his or her relationship with the worker, nearly always defer to the worker’s subjective complaint or purported pathology, even where the physician is unable to identify any actual pathology. Moreover, the family doctor will also invariably defer to his or her patient’s own subjective assessment as to the worker’s ability to work.

The bias of the bona fide family doctor in favor of his or her patient is certainly understandable. Physicians who do not typically involve themselves in personal-injury litigation, but who devote their careers to the treatment of their patients, are trained to accept and treat the complaints that their patients present. They are not trained to engage in forensic scrutiny of those complaints or to critically scrutinize the credibility of the patient history of injury. They presume that their patents are being candid, and they treat the complaints that their patients present, without question or dissent.

Furthermore, the bona fide primary care physician has a financial bias that can shape his or her medical assessment. Indeed, primary care doctors are obligated to honor the fundamental rule of any business—the customer is always right.

If the customer announces that he is in pain, the customer is right. If the customer announces that he is unable to work due to a work incident or is only able to work on a modified basis following a work incident, the customer is always right.

It is very rare, therefore, that a bona fide primary care doctor or family doctor will refuse to provide the allegedly injured worker a disability note or will refuse to provide the allegedly injured worker a note that places restrictions on what kind of work he or she is able to perform. And it is very rare that the family physician will refuse to prescribe either pain medication or anti-inflammatory medication or physical therapy where the patient/worker requests the treatment. That is, of course, because the family doctor knows that if he or she refuses the patient, the patient will seek the assistance of another physician.

So, even with the traditional primary care physician, there is both a professional and financial bias that can impact the assessment of an alleged injury within the workers’ compensation system.

It is not at all unusual in today’s workers’ compensation practices for the traditional family doctor or treating surgeon to be replaced by a physician selected by an attorney handling the patient’s workers’ compensation claim.

It has become quite common for claimant’s counsel to direct their clients to the attorneys’ own panel list of medical experts to whom they refer clients, and from whom they receive legal referrals.

In those instances where a claimant’s attorney refers a client to a provider, a symbiotic financial relationship develops between the attorney and the provider on multiple levels. First, the provider is afforded the opportunity to generate medical billables through physical therapy, office examinations, diagnostic studies, and, eventually, deposition testimony. Indeed, the retained medical expert can, on the basis of a single referral by a claimant’s attorney, generate medical charges and deposition fees totaling tens of thousands of dollars. The multiplier effect—with additional referrals over the course of years—can provide a truly remarkable amount of revenue for the retained expert.

In the context of such a pronounced financial relationship, the retained medical expert will find himself or herself obligated to offer medical analysis or expert medical testimony that necessarily favors the position taken by the referring attorney in a litigated workers’ compensation matter.

That obligation exists even in the context of what appears to be a fraudulent or embellished claim, because a refusal or failure to support the dubious claim could result in a loss of future referrals—a bad expert opinion in such instances can destroy a personal-injury litigation-based medical practice.

The development of the retained claimant expert over the past 10 to 15 years has become so pronounced that it is not at all unusual to see an injured worker stop consulting a competent and diligent treating doctor, and consult an attorney-referred litigation doctor for no other reason but to enhance the patient’s litigation leverage through expensive but unnecessary forms of treatment, and to provide the necessary expert opinion testimony, all for the purpose of extracting a favorable compromise and release settlement.

It would be naïve to deny that a physician retained by an insurance company to perform an independent medical examination will have no bias in favor of the party that retained his or her services.

But there are a number of reasons why an assessment by an independent medical examiner will nearly always be more credible and more legitimate than the analysis or testimony of the retained claimant’s expert: (1) the independent medical examiner receives a fee for the examination regardless of whether or not his or her conclusions favor the employer; (2) experienced defense counsel will not retain an independent medical examination expert who offers groundless or patently incredible medical opinions, since use of such experts will ultimately fail to yield favorable results and instead will cost the employer or carrier wasted time and money; (3) because of the inevitable challenges to the credibility of the independent medical examiner, defense counsel will strive to retain the services of a medical practitioner who possess impressive professional credentials—the retained expert will nearly always be board-certified and will nearly always have a subspecialty well suited to the medical question at issue; and (4) many times the independent medical examiner is retained not for the purpose of obtaining a full recovery opinion or an opinion as to the injured worker’s work ability, but simply to afford a fair and accurate assessment of the work injury, thereby allowing the employer or carrier to fully understand the future ramifications of the work injury in question.

The fact is that medical examination bias exists in any number of instances when a work injury is alleged and litigated.

If the employer or carrier is administering a claim properly, the use of a bona fide independent medical examination can afford a fair assessment that is worthy of belief even in the context of unavoidable institutional bias.

Andrew E. Greenberg is a founding member of The Chartwell Law Offices. He is co-author of the recognized authoritative text “Pennsylvania Workers’ Compensation: Law & Practice,” published by Thomson Reuters.

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