Can you ask for a second Independent Medical Exam (IME)? Under what circumstances?

 

What happens when a claimant refuses to attend a second IME?

Here’s a short and sweet unpublished opinion you should know about: Burke v. Pitney Bowes INC Long Term Disability Plan, 2010 Westlaw 3258596 (9th Cir. August 18, 2010) (pdf).

FACTS: Cara Burke sought disability benefits. She attended one IME and, based on the IME, her benefits were denied. She appealed and submitted lots more information from her treating physician who disagreed with the IME opinion.

So, the plan asked for a second IME to allow the examining physician to consider and respond to the treating physician’s rebuttal of the initial IME opinions.

The plan language: (1) allowed for periodic IMEs, and (2) expressly provided that refusal to attend an IME could be a basis for terminating benefits.

NINTH CIRCUIT: Denial of benefits for refusing to attend second IME UPHELD

 

RATIONALE:

  1. Even accounting for the structural conflict of interest, termination of benefits was not an abuse of discretion.
  2. It was reasonable for the plan to request a second IME to allow the IME physician to consider whether his opinions had changed in light of contrary submissions from the treating physician.