A recent New Jersey Appellate Division decision in Kohler v. Life Insurance Company of North America and Best Med Consultants, Inc., addressed a disability insurance carrier’s right to have a disability claimant examined through a so-called "independent medical examination (“IME”)." The plaintiff was a nurse who suffered injuries, including shoulder damage, requiring surgery. Her treating physician imposed various restrictions on her ability to perform the duties of her former occupation. She was awarded Social Security and long-term disability benefits through her employer.

As a result of an IME, plaintiff’s benefits were terminated, based upon the medical examiner’s conclusion that she had the ability to function in a sedentary or medium duty capacity and that medical information in the file did not support a functional impairment that would prevent her from working in “any occupation,” as defined by the policy. Her suit alleged tortious interference against the outside contractor retained by the insurance carrier to perform the IME.

The court found the carrier had the right under the policy to conduct an IME "as often as it may reasonably require,” and that the elements of tortious interference had not been satisfied. Similarly, the court concluded that the outside vendor had not engaged in insurance fraud by conducting this examination.

The court recognized that reasonable medical professionals can differ as to their opinion concerning functionality, and disability. The court was persuaded in part by plaintiff’s failure to avail herself of the opportunity to provide additional information in support of her claim, after the IME findings had been rendered. This would have included office notes from her treating physician, objective medical findings, hospital records, therapy notes, and other information. It is unclear from the opinion why this information was not provided.

The take away is that courts construing disability policy language will likely affirm the insurance carrier’s right to conduct one or more IMEs. In my experience many carriers seek out legitimate third-party opinions when sending disability claimants for IMEs. There is always a concern however that physicians conducting IMEs on a regular basis for insurance carriers, may not approach the task with full objectivity, given the temptation to form their opinions with one eye on the flow of additional work. Although that would violate ethical and legal standards, the suspicion lingers, nonetheless, there certainly are instances where the notion of the examination as "independent" is a misnomer.

The bottom line is that claimants and their attorneys must be vigilant in providing to the insurance carrier any and all information the carrier needs to consider regarding the patient’s medications, treatment, objective medical findings, day in the life explanations of their limitations and all other information to support a claim. The claimant must also insist that the IME practitioner have available to him or her before the examination, all information necessary to conduct a legitimate examination and form an opinion based upon a full understanding of the claimant’s condition.

If it cannot be confirmed that the disability carrier has provided this information, the claimant or counsel should arrange to have the information provided prior to the examination and document that it has been received by the examiner. Once the IME report is rendered, it can be reviewed to verify what information was actually considered in arriving at the conclusions stated.

We also recommend having a nurse practitioner or other qualified individual attend all IMEs to guard against the examiner mis-portraying in the report anything that transpires during the session, and to document the length of the visit, what questions are posed, how the physical examination is conducted, the claimant’s reactions in real time, and other important features.

Intuitively, we believe this militates against a temptation by the practitioner to cut corners during the examination. The hope is that in the face of a legitimate IME, a deserving plaintiff’s claim will prevail, or at the very least, claimant will be best positioned in the event of an appeal of the carrier’s determination. This case also points out the difficulty in establishing tortious interference which has an intentional component to it – making it a difficult claim to prove in this or other contexts.

We note that this opinion is unreported and obviously other case law may have relevance in construing this issue. This is just a snapshot based upon a recent unreported case. Claimants are advised to consult with counsel at all stages of a disability application for benefits, since there are nuances to the production of information to the insurance carrier and, in order to put the claimant’s best foot forward, the process demands a thoughtful presentation of relevant evidence to the insurance carrier.