Tips for Surviving Your Independent Medical Exam

If you are scheduled to receive an Independent Medical Exam (IME), you already know how stressful the process can be. Companies who are responsible for paying disability compensation are entitled to select a physician to examine you.

Unfortunately, the physicians selected by these companies are not “independent medical examiners.” The physicians selected by the insurance companies are often biased in favor of the insurance company so the conclusions, reports and testimony they offer can make receiving a settlement much more difficult.

However, by following some tips you can help protect yourself against these examiners who have a clear incentive to aid the insurance companies who are paying for their services.

Preparation

Before going to your Independent Medical Exam, gather your medical history so you can give consistent answers to the IME’s questions. Inconsistent answers give the examiner ammunition to use against you and bring into question your reliability. Speak with your attorney and your personal physician before your appointment and schedule an exam with your physician for the same day as your IME.

Remember, you may be under surveillance around the time of your IME so follow your doctor’s orders completely. Not using crutches or doing activities you are not supposed to will give the insurance company reasons to doubt the severity of your injury claims.

At The Office

When going to your IME, bring along someone who can take notes on what was done and ask questions for you. While in the office, take pictures of any obvious physical ailments such as bruises or swelling. Speak up if the IME is hurting you during the examination, but do not overreact or exaggerate symptoms. False of exaggerated symptoms are grounds for not believing your legitimate injury claims.

While being examined, do not forget that the examiner is NOT your doctor. Do not ask him questions about treatments or your injuries. Simply answer the questions he asks. Most questions require a yes or no response. Don’t elaborate. Anything you say that can be interpreted as inconsistent can be used against you.

After The Visit

After your Independent Medical Exam you should request the credentials of your examiner from the insurance company. You should also request a copy of the IME’s report. Finally, ask for a copy of the insurance company’s in-house physician as well.

Conclusion

Going to an Independent Medical Exam can be a stressful experience. No one likes to be treated as though they are attempting to commit fraud against an insurance company. However, if you go to your IME well-prepared and answer all questions truthfully, you will give you and your attorney the best chance for receiving a positive settlement.

The Zen of Intercession

Okay, you have always wanted to be a lawyer, you have watched all the shows on television, you have read all the books, you took all the “right” courses in undergraduate school. You focused like a laser beam on your goal and here you are at Charlotte School of Law! You sit dutifully in all your classes, you pay attention, you read tons of VERY dense materials and you really begin to feel like you have got “it.” You are on your way to becoming a lawyer or at least having the knowledge to mentally be “lawyering.”

YOU CHOSE to be here, yes, we all did, all of us decided for one reason or another that we needed to subject ourselves to the rigors of a legal education. To leave behind whatever creativity and/or emotions that might possibly interfere with the process of thinking like a lawyer. Yes, the driver aimed to hit the girl that was walking across the street but because she was wearing headsets and could not hear the car coming towards her and he did not hit her he has done nothing wrong. Really? Where I come from he needs to be punished, because that would be “right,” but that is not the law because the law is supposed to make things fair. To leave behind our own sense of fairness and creative thought processes becomes necessary to succeed in law school.

Now, imagine yourself sitting on a yoga mat, your eyes are closed, the room is quiet, the fluorescent lights are off and there are no cell phones or computer notes to be typed. AWWWW, you breathe in and out, you let your mind go blank, you become aware of the silence. You open your eyes and find yourself in Professor Peter Thompson’s Art of Persuasion & Advocacy class during the intersession!

For a long time, emotions and creative thinking were an underprivileged area in psychology. They were not regarded as a major area of scientific psychological endeavor that deserved concerted research efforts and especially in the legal field. Things have changed over the last decade or so and exploration of lawyers and their emotions has become common fair. The necessity to tap into the emotions for lawyering are actually away to make you a better lawyer because when you can become creative you can think, as I like to say, “without a box!”

It has developed to such an extent that its phenomena can be described in terms of a set of laws, the laws of emotion. Formulating a set of laws of emotion implies not only that the study of emotion has developed sufficiently to do so but also that emotional phenomena are indeed lawful. It implies that emotions emerge, wax, and wane according to rules in strictly determined fashion. Emotions are lawful. When experiencing emotions, people are subject to laws. When filled by emotions, they are manifesting the workings of laws. There is a place for obvious a priori reservations here. Emotions and feelings are often considered the most idiosyncratic of psychological phenomena, and they suggest human freedom at its clearest. Therefore, when one is dealing in emotions and creativity as a lawyer they are often left in the briefcase.

I akin the need for this class and the powerfully positive lawyering information to when my daughter started medical school. She called me up to tell me that they “beat the altruism” out of her so she could be a better physician, one that had been devoid of emotions so she could efficiently evaluate her patients or remove a limb. When law school started all of us probably had some level of creativity, after all we did finger-painting in kindergarten, but in all honesty all of us probably checked it at the door. I know I did!

Professor Thompson has created a class in which he pulls the creativity out of you and ultimately will make you a better attorney because if we are all thinking alike then no one gets to be out of the proverbial box. I like to say that great minds think together versus alike and then we become a force to be reckoned with because we are able to collectively advocate through our creativity.

Professor Thompson perceived everyone’s latent abilities and brought them forward to achievement through Zen work. He made all of us feel comfortable enough to get in front of a group of 23 strangers and “act” like we were lawyers. His ability to bring out the best in all of us and guide us on a journey of self discovery through meditation, the 3 C’s, conflict, credit, and control, (which you will have to attend to understand how they work in the courtroom setting), intonations, and so much more. His gift of releasing our story telling talent from his expert guidance allowed us the opportunity to express ourselves. Finally, through our daily reflections we were able to write down these skills for future perusal. Professor Thompson was honest and demanded the best of each of us sprinkling us with what one student termed, “golden nuggets.” (Claudine Chalfont 2L)

Since he expected of us as much as he gave I personally felt he truly believed in all of us. His belief made me work harder at understanding the concepts and the integration of them into becoming an expert lawyer. Professor Thompson gave us motivation and steered us all on the right track moment from moment. Becoming a better advocate requires the skill of being creative and if you want to unleash your creative mind Professor Thompson’s class is the place to be!

Hence, I will remember Professor Thompson the very first time I step into a courtroom and it will be his voice, guidance and expertise I will hear in my ears, whispering, “You can do it, tell a great story!” So folks, roll up your yoga mats, bring your finger-paints, leave your computers and cell phones at home and oh, if you have a bony butt, bring extra padding for the floor.

The Supreme Court and Your Smartphone

Suppose you’re pulled over because your left taillight is out, because your license plate tag is a bit out of date, or because one of your passengers just threw a cigarette butt out the window. And suppose the officer notices that you have a cell phone in your pocket. Should he be able, without a warrant, to look through it like he might look at your wallet photos as you pull out your driver’s license?

One of these very things happened to David Riley, in California. His tags were expired & he was pulled over. It was further discovered that he was driving with an expired license and the police impounded his vehicle. A search of the car turned up weapons and his cell phone, which was seized and searched much as if it was a wallet in a pocket.

A modern wallet (even one made out of duct tape) has the ability to store more or less the same quantity of data as a wallet of yesteryear: Driver’s license, ID card, a few credit cards, a few family photos, a couple of phone numbers on corners of napkins, and some cash.

But a modern size-of-a-wallet smart phone – even though 8 year-olds may be using them to play Angry Birds or to watch Sponge Bob – are a wonder of engineering, with more computing power than the supercomputers that were top of the line not so long ago. When Huey Lewis was singing “The Power of Love,” the most powerful supercomputers of the day would have underperformed the iPhone of today. A smart phone is not just a wallet, for it can store 100,000 wallets-worth of documents.

The Solicitor General of California said that a phone in a pocket is no different than a wallet or a picture in a pocket, even though it would take truckloads to haul around said data in paper form. Hence the case of Riley v. California, which resulted in a conviction on another charge (a gang shooting), based on evidence in Riley’s smart phone. Riley maintains that the Fourth Amendment “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” should have protected him from having all that data in his cell phone seized and examined. The US Supreme Court will be hearing and presumably deciding on this case at a Federal level in the coming months.

We have recently discovered, thanks in part to sources like WikiLeaks and Edward Snowden, that we already live in an era of ubiquitous spying, listening, and observation. Should we then also allow our “papers and effects” stored on our mobile devices to be seized and searched for the static data they contain? To decide, perhaps we should take a look at what these devices do contain, and what a forensic examiner can see in them.

Let’s start with the obvious: pictures & phone books. I’m not a complete pack rat, but my iPhone has about 5,000 photos on it. It also has a couple hundred phone numbers on it, with names, street addresses, email addresses and more. And that’s just my immediate family!

A quick look at my apps and I see more than 200. A lot of those apps store data on my phone, including texts, messages, more pictures – there’s a whole host of stuff. The data stored by the apps on my device include dates, times, durations of events and activities. It stores who I had & who I will have meetings with, and when and where. A forensic examiner can see where I’ve been on the web, what I’ve looked for, what I’ve looked at and for how long.

Then there is less obvious data. The phone stores the names of the networks & wi-fi signals I’ve been attached to and when. The pictures store GPS data so we can see when and where I took a picture, down to a few yards in distance, and fractions of a second in time. So we can see not only where I’ve been on the Web, but where I’ve been in the world.

Notes – pages and pages and pages of notes I seem to have collected. Perhaps hundreds. Voice memos – mine go back 5 years. What’s in all those? I don’t even remember. But I don’t really want to dump them unless I know what I’m throwing away.

Then there’s an interesting item that isn’t even accessible through an app but that forensic examiners love. It’s a dictionary file – not Webster’s, but one deigned by [your-name-here]. It is kind of an informal keylogger. It keeps track of items you type and helps your autocorrect come up with the occasional crazy spelling because you have spelled it that way before. It can be thousands of words long, and several hundred of them are in almost sentence-like form, just as you typed them. You might have typed them in any application – even one that doesn’t store documents, messages, or emails on your phone. You might be surprised at what’s in there.

So you decide – do you want all this info public? Do you want to be pulled over for an expired license tag and have to hand over your phone and all these reams of information to an ambitious and curious law enforcement official who thinks there might be something of dubious legal interest in there? Do you think that there’s nothing on your device that somebody or other might think is indicative of lawbreaking? Or vow-breaking?

That’s the issue the Supreme Court will be dealing with this summer. The SCOTUS will be telling us what the law of the land will be, and whether Gigabytes of your private life could become public. Just. Like. That.

Where do you stand on the issue?

UPDATE: Not ten minutes after I published this article, on June 25, 2014 the Supreme Court’s decision was announced (far faster than the author had expected). It found for Riley and for privacy, that the police must have a warrant if they want to search the cell phone, or other digital device, of an arrestee. Quoth Chief Justice Roberts, “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple – get a warrant.”