The Massachusetts DIA's Impartial Physician Program: Helping to fairly resolve medical disputes in workers' compensation cases.
1. What is the Impartial Physician Program?
In 1991, the Massachusetts Legislature acted to eliminate a problem. Medical reports submitted to the DIA often favored the position of the side that hired the physicians who wrote them. As Massachusetts' law requires judges to base their decisions in medical matters on the strength of the medical evidence in the record, medical reports at the time were voluminous and the litigation process was viewed as inefficient, time consuming and expensive.
Since the 1991 reform, the DIA has developed a roster of impartial physicians whose members are board-certified specialists under contract. Impartial physicians serving on the roster are eligible to be chosen by the DIA to examine injured workers involved in pending medical-issue disputes. A formal hearing may not take place in any matter where a medical issue is involved until a physician from this roster examines the injured worker and renders a written report to the presiding judge.
The impartial report is the sole medical evidence considered by the judge. By statute, "no additional reports or depositions of any physicians" are allowed into evidence at the hearing. (Only exception: the judge may admit additional medical evidence when the judge finds a report "inadequate" or that the medical issues are "complex.")
2. What is the Department looking for in an Impartial Physician?
We continue to recruit "board certified" physicians with M.D. and D.O. degrees. (The only chiropractors on our roster have D.A.B.C.O. certification.) The services of specialists used most often are in these fields: orthopedic surgery, neurosurgery, neurology, occupational medicine, physical medicine and rehabilitation, or internal medicine. Other specialists are represented, but their services are used less frequently.
3. How do I become a member of the Impartial Physician Roster?
Applications are available on our website. Please return your application along with a copy of your Curriculum Vitae. The DIA will review the materials and send a contract, if appropriate. Application To Serve As An Impartial Physician
4. What does an Impartial Physician do?
Physicians agree to abide by the following descriptions of their duties and responsibilities during their time of service to the Department as members of the Roster of Impartial Physicians.
A. To serve on the Roster of Impartial Physicians pursuant to MGL c. 152 Sections 11A and 8(4), of the Massachusetts General Laws; to examine and evaluate workers' compensation claimants when selected by the parties, or when appointed by an Administrative Judge or by the Senior Judge.
B. To conduct an impartial examination within forty-five (45) calendar days after date of notice of appointments; to render a report within twenty-one (21) calendar days of each Section 11A examination, and within fourteen (14) calendar days of each Section 8(4) examination; and to render a supplemental report if required by the Administrative Judge.
C. To render to the Department, in a format acceptable to the Department, a report containing your findings and the basis of your opinion as to: whether an impairment of function exists; whether such impairment is total or partial, temporary or permanent in nature; whether within a reasonable degree of medical certainty such impairment of function has as its major or predominant contributing cause a personal injury or illness arising out of and in the course of the employee's employment; and, any other matters relevant to your report. Residents and fellows in training may observe and participate in a limited capacity for purposes of education only, but may not be solely or primarily responsible for conducting the examination or interpreting findings, and may not write the report to the Department.
D. At the direction of the Department, in some instances to render a report based on your review of an employee's medical records without an examination. To accept this "Fee Schedule" as compensation for your services:
- $650 for each report you submit. (Note that exams on cases where appeal fees were filed prior to 11/1/02 will be subject to the previous rate of $350 per report);
- $750 for first two hours of your deposition (paid by deposing party);
- Each additional hour (over the initial two hours) will be $150 per hour;
- $300 for your review of medical records without examination of worker;
- $200 for each supplemental report. (Note that supplemental reports on cases where fees were filed prior to 11/1/02 will be subject to $90 per report);
- $150 for cancellation on less than 48 hour notice to your office. (Note that exams on cases where fees were filed prior to 11/1/02 will be subject to a $75 cancellation fee).
E. At the request of the Department, to provide documentation to update your basic qualifications for appointment to the Roster, which documentation, by way of example, and not of limitation, would include:
- copy of your full BRM biannual application to practice as a physician;
- copy of your board specialty re-certification;
- copy of the declarations page of your current medical malpractice insurance policy;
- copy of the declaration page of your workers' compensation insurance policy.
- Criteria for eligibility during the period of your appointment and reappointment:
- current full state license (no restrictions) rendered by the appropriate board of registration;
- board certification as a specialist within your discipline;
- active clinical practice, e.g. minimum of 8 hours/week of clinical, or combination of 4 hours/week clinical teaching plus 4 hours of clinical teaching or research;
- no unresolved/non-frivolous complaints with the disciplinary board of your practice to include the National Physicians' Data Base and/or the Health Care Services Board;
- staff appointment and/or admitting privileges at a JCAHO-approved hospital or health care organization (desirable, but not essential, if other criteria are met);
- workers' compensation insurance coverage, where needed.
F. To report in writing to the Director of the Impartial Unit any change(s) in the your eligibility (see par. 7) which might adversely affect your ability to meet the basic qualifications for inclusion on the Roster such as cancellation, non-renewal, or restrictions on:
a. medical license;
b. board certification;
c. workers' compensation coverage.
G. To refer any requests for information or subpoenas for reports written by you for the Department to the Deputy Director of the Division of Dispute Resolution.
H. To disclose to the Department in writing, on a continuing basis, whenever you are affiliated with any independent medical examination organization, or corporation of physicians, with a primary purpose to provide litigation-related examinations exclusive of treatment and follow-up evaluations; this disclosure enables the Department to assign you work which does not put you in conflict with work done on behalf of the claimant (or the adverse party) by a medical examination service with which you have the declared affiliation; to provide the Department with reports authenticated "Under the Pains and Penalties of Perjury" by your personal signature.
I. To be available in a timely manner for a deposition with the understanding that:
- requesting attorney schedules deposition directly for a time/location convenient to you;
- depositions often take under two hours and are generally limited to cross-examination;
- requesting attorney pays you for up to three hours of your time before deposition begins;
- no deposition exceeds three hours duration without an agreement between you and all parties; or, unless deposition of longer duration is authorized in writing by the Administrative Judge who is hearing the case; neither statute nor regulation prohibits the parties from agreeing with you to a dollar amount sufficient to compensate you for the additional time you spend in a deposition.
J. Consistent with the above, to disclose to the Director of the Impartial Unit, in writing, whenever the Board of Registration in Medicine places any restriction on your license to practice, or whenever any hospital discipline, civil action, or professional complaint concerning you is pending.
5. How important is my exam and opinion to the outcome of the case?
In most disputed cases, your exam and opinion will be the most important piece of medical evidence introduced at hearing. Why? Because when a claim involves a dispute over medical issues, a state-appointed medical examiner is required to examine the employee and file a written report. Except in the occasional case where the hearing judge determines that your report is inadequate, or the medical issues complex, your report and opinion will be the only medical evidence before the judge.
Under the law your report "shall constitute prima facie evidence of the matters contained therein." The hearing judge must adopt your opinion on all medical issues addressed by you. It is not an overstatement to say that your medical opinion is the most critical piece of evidence in the case. The outcome of the case will largely depend on your findings.
6. Is there any standard report form? Do you provide dictation services?
No to both. You typically receive the medical records 30 days in advance. Your #1 priority: follow the instructions given in the assignment notification letter. If you have any questions, contact the Impartial Unit. The report should be thorough, but not unduly complicated. It must address each area in the "format." We expect you to read all records provided, then render a complete detailed report which touches "all the bases" clearly enough for the average layperson to understand it. (But, we recognize that you must deal with medical terms and issues.) Your report must set out your diagnosis and prognosis, your opinion on causal relationship between the medical conclusion found and the history given of the injury at work, the level of medical impairment, specific losses of function or permanent impairment (if any), and your understanding of the physical requirements of the employee's specific job.
7. How does an "Impartial medical exam" differ from an IME - "independent medical exam" or "insurance medical exam"?
In an IME, one party, frequently the insurer, pays a fee for your services. An Impartial Physician has no relationship with, nor allegiance to, either party. The DIA retains you to serve as the judge's medical expert. You are neutral to the parties' dispute. Your report goes into evidence. The Supreme Judicial Court has said that the examiner, "…as to the prescribed medical issues, stands in the position of a master or arbitrator who has considered medical evidence from both parties and whose determination of the medical issues the administrative judge reviews…" at hearing. O'Brien's Case 424 Mass. 16, 23 (1996).
8. May I conduct IMEs while under contract as an Impartial?
Yes … but the Department needs to know what IME organizations you work for so you can avoid conflicts. In order for your impartial report to be useful it must be free of any bias or appearance of bias. You may not conduct an impartial exam in a place where IMEs are done. You may not do an IME, and an impartial exam, on the same person. When you inform the Impartial Unit of a possible conflict, we notify the judge. If the judge reports the parties have no objection after considering the possible conflict, you keep the case. Otherwise, the Impartial Unit assigns it to another Impartial Physician, and assigns you the next.
9. May I charge more than the DIA allows for a complex case?
By law and regulation, you are paid $650 per exam. Funding for the exam comes from the party or parties appealing the judge's conference order. Attorneys for the parties submit the medical record to the judge. On occasion, an assignment comes with an uncommonly large volume of records [or the nature of the case requires extensive research.] In such an instance, you may contact the Impartial Unit and clearly state why an additional fee should be allowed. The Impartial Unit can ask the judge to advise the parties of your request, and, if a party is willing to pay the additional charge, then you would be so notified. If not, you would be entitled to return the medical records and decline the examination. [NB: Impartial Unit reassigns such cases to another physician more often than it requests an additional fee.]
10. May I refer the injured worker to another professional?
No. You make your examination and formulate opinions from the medical records the Department provides you. You may neither refer nor treat the worker after your examination is completed. [A treating physician may be exposed to liability an Impartial Physician does not have.] It is appropriate, and sometimes necessary, for an Impartial Physician to state treatment options. Such a statement can help resolve the medical dispute in the litigation.
11. Can my report be used in proceedings outside the DIA?
A workers' compensation case may develop into a "third party action" in Superior Court. We ask that you refrain from signing anything an attorney gives you that relates to work you do for us. If asked to do so, telephone the Impartial Unit immediately. Your report is a public record. We provide an official copy of your report upon written request. The parties, and their lawyers, should not contact you, or your office, except to schedule your deposition.
It may be helpful for you to insert the following language at the end of your impartial report: "I certify under the pains and penalties of perjury that the above opinion has been rendered with a reasonable degree of medical certainty based on the information provided by the claimant and the Department of Industrial Accidents. I further certify that I am a licensed physician in the Commonwealth of Massachusetts."
12. What do I do when I receive a subpoena to testify in a Superior Court case related to an injured worker whom I examined as an impartial?
Never ignore a subpoena! Fax it to us so we can contact the attorney who sent it. An injured worker in a third party case may have mistakenly listed you as a "treating physician" in answering an interrogatory. Telephone Chief Legal Counsel, Kevin B. O'Leary at (617) 727 4900 x 7358. He will be your intermediary with the lawyer. If necessary, we will go into court to quash the subpoena. This is very rare. [Since the program began with the 1991 reforms, no "Impartial Physician" has had to testify.]
13. May I testify as an expert witness in a Superior Court case which started as a workers' compensation case in which I conducted an impartial exam?
If you think there may be a conflict, contact the Impartial Unit. They will look up the case. It would be inappropriate for you to testify if the case is not resolved at the DIA, or if an appeal is before our Reviewing Board. Otherwise, you may testify as an expert witness. Were an attorney to use a subpoena to obtain your expert testimony without professional reimbursement for your time, kindly let us know, and we will intervene.
14. What does a deposition for a workers' compensation claim entail?
You are considered the DIA's expert. Both parties may cross-examine you. You choose the time and place -- usually in your office. Currently, the attorney for the party that asked for the deposition pays you $750 in advance for up to two hours and each additional hour (up to two hours) will $150 per hour. Depositions occur after the Hearing [unlike in the trial court where they take place before.] Your answers to questions asked at the deposition help the judge determine the medical facts. You play a critical role in enabling the judge to make an accurate appraisal of an employee's condition. Depositions may not last longer than three hours unless you, and the judge, agree. With seasoned workers' compensation attorneys, depositions last one hour or less. [They lay a foundation, ask questions, and leave.] A party to the case may often try to establish that your report in "inadequate" in some way or that the medical issues are so "complex" that additional medical evidence should be allowed into the record by the presiding judge. "Impartial" does not mean "indecisive." Be prepared to explain and defend your findings and opinions, and to respond to hypothetical questions. Any change in your opinion should be for substantive reasons. If you are unable be deposed, your report is of no use to the department. Let us know of any anticipated retirement, practice relocation, vacation, or any foreseeable unavailability.
The success of this program largely depends upon both the quality and quantity of the doctors willing to serve on the DIA. For more information, or to request contract materials, please contact:
Impartial Scheduling Unit
Department of Industrial Accidents
1 Congress Street, Suite 100
Boston, MA 02114-2017