Injured worker’s herniated disc overlooked during a cursory independent medical examination
(Q) For years my own doctor has sat with me in his office while he typed his observations into an electronic health record on his computer. He would turn sideways to talk with me, then look back at his screen. He typically looked at the computer more than at me, but at least I could see his face. In other words, I’m used to competing with my doctor’s computer for his divided attention.
But a WCB doctor who recently performed an independent medical examination (IME) on me took aloofness to a whole new level. The independent examiner sat at a computer in his examining room with his back to me. Yes, he literally turned his back on me. I could still hear his voice but now without seeing his face.
At one point he spun around and ordered me to lie on my back with both legs extended. Without making eye contact, he said to lift a leg toward my head. One or two other movements followed. And then he was out the door in a flash. The entire thing took less than 10 minutes. I didn’t even know if I should stay or leave, but after an hour staring at a wall, I figured I should just go.
As it would turn out, this specialist decided that I don’t have a severely herniated lumbar disc. Despite MRI and CT scans which showed a herniation, and two other specialists who confirmed the diagnosis, WCB denied my claim on this basis. And so I suppose this is the end of the road for me then?
Answer
When a disagreement occurs over a medical aspect of a worker’s claim, the WCB will usually refer the worker for an independent medical examination (IME). The physicians who perform IMEs for the WCB are retained and paid by the WCB under fee-for-service contracts. When an IME is required, the WCB selects a physician from among these contracted providers who has expertise in the injury or illness presented by the worker. The worker effectively has no choice in this process. Although the worker can refuse to consent to the IME, they may lose their benefits if they do so.
If you disagree with the result of the IME, you have every right to obtain your own independent examination from a physician of your own choosing (and at your own expense, unfortunately). It’s a fact of life that, sometimes, different doctors give conflicting diagnoses, treatment suggestions, return-to-work recommendations or other opinions on your claim. And when this happens, physicians will often have a discussion to resolve these differences in opinion which from time to time may lead to a medical consensus. However, where the weight of medical evidence is approximately equal both for and against the validity of a compensable condition, the benefit of the doubt ought to go to the worker:
“A worker is not required to provide proof beyond any
WCB POLICY: 01-03 PART I
reasonable doubt in support of a claim for compensation.
Adjudication is determined on the balance of probabilities,
based on all the facts. If, however, there is doubt on any
issue because the evidence is approximately equal in
supporting one or more decisions, WCB will resolve the
issue in the worker’s favour.“
Not getting a fair shake?
But workers aren’t always the beneficiaries of doubt. And anyone caught in this situation is wise to seek out the advice of an experienced representative. Certainly give us a call if you’d like to learn more about your options.
