Often, it is a tie-breaker. In the situation in which there is a difference of opinion between the treating physician and the independent medical examiner, otherwise known as the Respondent’s Exam, the Commissioner has the discretion to have the claimant examined by a physician of his/her own choice. A typical scernio is as follows: the claimant suffers degenerative disc disease in the lumbar spine. The treating physician has provided an opinion that a one level fusion with instrumentation is reasonably and medically necessary. The workers’ compensation carrier has obtained an opinion from their respondent’s examiner stating that such surgery will not be beneficial, and is therefore not recommended. The parties address this with the commissioner for a resolution.
Each commissioner has his or her own favorites which he or she will call upon to use as a commissioner’s examination. It is critical for the claimant’s attorney to know, going into the hearing, who the commissioner is, and whom she is likely to select for her commissioner’s exam. A good workers’ compensation attorney will “know the book” on each of the potential commissioner’s physicians. The claimant’s attorney must factor into his strategy in going to the informal hearing, the most likely outcome of the commissioner selecting the physician of her choice. For example in Connecticut, there is one widely-chosen commissioner’s physician who has testified repeatedly that he does not believe in the usefulness of a multi-level fusion in the lumbar spine. Therefore, if you are going into a hearing in which the commissioner is likely to select this physician, and if it is your position that you want to advance the surgery for your client, you will try to steer the commissioner away from a commissioner’s examination and try the case on the two opinions that already exists, rather than introducing the foregone conclusion of the commissioner’s position. Some commissioners are more deferential in ordering the commissioner’s exam based on counsel’s arguments. Other commissioners will order a commissioner’s exam almost automatically.
The significance of the commissioner’s exam is that it carries more weight than either the treating physician or the respondent’s examination. In general, once a commissioner’s examination has been completed, the commissioner will adopt that opinion unless there is overwhelming evidence from one of the other two physicians which would provide a basis for the commissioner to ignore the commissioner’s examination.
In many cases, if the commissioner’s physician agrees with the treating doctor on an issue, the respondent will throw in the towel. If the findings by the commissioner’s physician are more closely aligned with the IME than the treating physician, the claimant must give some serious consideration to a compromise, or risk losing the case.