Impartial Physician Program

The Impartial Physician Program began in order to prevent the submission of medical reports favorable to the side that hired the doctors who wrote the reports for workers' compensation cases.

Importance of the impartial exam and report on 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.

Impartial Medical reports and depositions

Report Details:

You typically receive the medical records 30 days in advance.

Your #1 priority is to 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 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,
• 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.

 

Deposition Details:

You are considered the Department of Industrial Accidents' expert. Both parties may cross-examine you. you choose the time and place, usually your office.

Currently, the attorney asking for the deposition pays you $750.00 in advance for up to 2 hours. Each additional hour (up to 2 hours) will be $150.00 per hour.

Depositions occur after the hearing. Your answers to the questions you are asked will help the administrative judge determine the medical facts. 

Depositions may not last longer than 3 hours unless you, and the administrative judge, agree.

With seasoned workers' compensation attorneys, depositions last 1 hour or less. 

A party to a case may often try to establish that your report is "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 administrative judge.

"Impartial" does not mean "indecisive". Be prepared to 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 to be deposed, your report is of no use to the department.

Let us know of any unanticipated retirement, practice relocation, vacation, or any foreseeable unavailability.

Impartial medical exam v. Independent medical exam (IME)

In an independent medical exam (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).

Charging more than the DIA rate

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. The Impartial Unit reassigns such cases to another physician more often than it requests an additional fee.

Making referrals

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.

Can the impartial report be used in proceedings outside the DIA?

Third party actions:

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."

If you get subpoenaed to testify in Superior Court:

Never ignore a subpoena! Fax the subpoena to us [phone] 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.

Call Chief Legal Counsel Kevin B. O'Leary at [phone] as he will be your intermediary with the lawyer. 

If necessary, we will go into court to quash the subpoena. It is very rare we have to go to court to do so.

Testifying in Superior Court as an expert witness on a case that started as a workers' compensation claim:

If you think there is a conflict, please contact the Impartial Unit at [phone].

It would be inappropriate for you to testify if the case is not resolved at the Department of Industrial Accidents, or if an appeal is before our reviewing board. Otherwise you may testify as an expert witness.