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Lack of support is the most difficult and critical problem to address because it is often a major factor in an ALJ’s decision that an IME report was not credible. Unfortunately, not all doctors agree on what constitutes adequate support. Thus, the cover letter writer may receive an IME report and conclude that the expert did not support her answers sufficiently, but be faced with a headstrong expert who disagrees. Although difficult, this scenario can be overcome.
First, the IME vendor should work with the writer to explain to the expert the importance of citing relevant evidence, professional experience, and medical literature in the report. The IME vendor should be able to explain to the expert that a conclusory answer without any sort of explanation as to how and why the expert reached the conclusion will not pass muster with the “trier of fact” (ALJ). In truth, experts want to write effective, credible reports because they know that good reports generate more business opportunities. Thus, experts will often be receptive to requests to strengthen their conclusions if the evidence and literature supporting their opinion is obvious and available.
Second, the cover letter writer is typically the person who is most familiar with the claim being addressed, which puts the cover letter writer in the best position to point to the hard evidence and literature that supports the expert’s conclusions. While no IME vendor will tell an expert what to write or what evidence to use, the IME vendor should convey the writer’s concerns to the expert. This would include asking the expert to consider specific relevant evidence or literature in their answers. Ultimately what the cover letter writer and the expert consider to be important evidence may differ, but in cases where the expert’s answer is wholly unsupported they are likely to be receptive to requests to clarify or amplify if the cover letter writer can explain why the answer is problematic unless the expert provides additional support.
No IME vendor can guarantee a perfect report. However, we should expect responsive, consistent, and well-supported IME reports. In judging the report, we should not ask whether the report is favorable but instead whether the expert reached a reasonable and well-supported conclusion from the available evidence. If they did not, your IME vendor can and should work with you to repair deficiencies in the report. Ultimately, those requesting IME reports have the right to expect to receive a reasonable and credible report based on the evidence made available to the expert.
Do you have any ideas on how to strengthen the cover letter so these types of problems are minimized?
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