The prevalent belief among worker’s compensation practitioners is that once a Worker’s Compensation Board (“Board”) Hearing Member orders an Independent Medical Examination (“IME”), the results of such exam must be followed.
However, Indiana Code Section 22-3-3 7(c), under the Indiana Worker’s Compensation Act (“Act”), states in part that:
If either party disagrees with the opinion of the independent medical examiner, the party shall apply to the board for a hearing under IC 22-3-4-5.
The Indiana Court of Appeals recently handed down a decision affirming both a Hearing Member’s and the Full Board’s findings that an employee did not sustain an injury from a workplace accident, which findings were contrary to those of a Board IME physician (Steven M. Bush v Robinson Engineering & Oil, Co. Inc., 93A02-1508-EX-1299.).
Steven Bush was involved in a workplace accident that injured his back. The employer claimed that symptoms complained of by Bush related to a car accident he had five (5) years prior and not from the workplace accident. Bush requested an IME and the Board appointed a physician to evaluate him. The IME physician agreed that Bush’s symptoms were the result of the workplace injury and recommended further testing. Bush’s employer objected to these findings and a hearing was held. The Hearing Member, and later, the Full Board, found that Bush did not sustain his injury from the workplace injury. Bush appealed.
On appeal, Bush argued that when an employee requests an IME, the Act’s “statutory scheme” creates a presumption that the IME opinion is correct. The Court of Appeals disagreed, stating that “If, as Bush suggests, the IME’s opinion presumptively is correct and is to be followed, then there would be no need for a hearing. The plain language of the statue establishes the right of either party to disagree with the opinion of the independent medical examiner, and in such cases, that party may request a hearing.”
Thus, when faced with an IME request, employers should realize that the IME physician’s opinion does not have to be taken as the final word and that it may be prudent to dispute the results and take the issue to hearing.
About the Author
Stephen S. Lavallo, a partner at the law firm Kahn, Dees, Donovan & Kahn, LLP, in Evansville, Indiana, has more than 25 years’ experience in the practice of estate planning and administration law, worker’s compensation defense, business law, and real estate law, and is a certified civil mediator. He represents businesses, both large and small, as well as individuals in a wide variety of business transactions, organization, sales and leasing of properties, and in the defense of companies from worker’s compensation claims. In addition, Steve advises individuals in connection with their estate and wealth transfer planning and during the process of probate and trust administration.