Symptom Validity Testing
PERSONAL INJURY
Frank Liberti
DC
Are You Aware of What Factors Insurers Will Accept or Reject in Your Personal Injury Claim?
It is concluded that the process of Symptom Validity Assessment allows inferences about the degree of certainty of clinical judgments on the authenticity of reported symptoms in a personal injury claim.
Symptom validity testing has satisfied the courts Evidentiary Burdens of Proof to determine whose side, the Chiropractor or the adjuster and IME, has greater believability and degree of reasonable medical certainty of clinical judgments on the authenticity of reported symptoms.
C Keppler et al. Fortschr Neurol Psychiatr 85 (1), 1733. 2017 Jan 23.
Do Insurers Rubber Stamp Disputes and Denials?
In theory, IMEs are intended to clarify very complex medical restrictions and limitations. However, in actual practice, the independent medical evaluation is a risk management tool paid for by the defense insurer that rubber stamps a future decision to deny the claim. The claim for benefits is risk managed, a term some refer to as “stacking the deck.”
Most defense insurance providers maintain a master list of IME Physician Network participants. These IME physicians perform hundreds of medical evaluations each year for the insurance industry and make doing so a large part of their practice. Their bias in favor of the insurance company is well known. The business of performing several hundreds of insurance IMEs proves to be very lucrative for the IME physician. For some specialties, performing IME examinations can be more profitable than clinical services!
Medical Examiners Cannot Be Truly Independent from the Insurance Company Paying Them
When an insurance company hires an Independent Medical Examiner, the waters immediately become muddied. The reality is that with the insurance company as their de facto employer, these insurance industry physicians are not independent in any sense of the word, and can actually add to the controversy involved in determining medical impairment. These “independent” medical examiners often show their true allegiance by drawing conclusions, writing reports, and providing testimony that is clearly biased in favor of the insurance company.
These independent physicians often find their opinions more suited to those of defense claims investigators, who are paid by the insurance company, to provide documentation adverse to the insured’s claim. IME physicians are not concerned with the insured’s medical well-being and they have a clearly defined agenda and strategy to assist the insurance company with what appears to be credible, objective medical opinion contrary to that of the primary care physician.
If you’re a chiropractor treating personal injury cases, you’re no stranger to the insurance adjusters and their independent medical examiners (IMEs) who dispute and deny your claim factors and cut your fees.
IME Is Reported to Be Biased
“Independent Medical Evaluation” (IME )—is based on opinion, not evidentiary burdens of proof. IME does not conform to regulatory requirements or follow case law to show which side has greater believability and does not establish the preponderance or greater weight evidence.
www. badfaithinsurance. org/reference/HL/0090a.pdf
Court Authorities Introduce IMV to the Rescue
Few are aware of the process of IMV (Independent Medical Validation) to overcome IME (Independent Medical Examination).
In Cam v. Bam, 709 S.W.2d 175 (Tex. 1986), the courts derived a process of Independent Medical Validation and Medical Determination, with Memorandum Of Points, Statements of Undisputed Facts, Declarations, Exhibits and legal authority, to show by a preponderance of the evidence, the burdens of proof to eliminate varying medical opinions and show the Great Weight of the evidence.
Winning the Greater Weight of the Evidence Challenges
In reviewing a greater weight challenge among varying medical opinions, one may examine the record by process of the IMV to determine:
1. If the finding under medical validation is conclusive of the greater weight, and preponderance of the evidence is clearly medically validated and just.
2. If the greater weight and preponderance of the evidence are shown to be medically validated and support its existence.
If such medical evidence comes under dispute, you must raise a reasonable doubt concerning the nonexistence of a fact by a preponderance of the evidence, by clear and convincing proof beyond a reasonable doubt to show that the findings are so against the Great Weight as to be clearly wrong and manifestly unjust, not by opinion, rather by the process of independent medical validation (IMV) following precedents and authority set by previous court rulings, judicial decisions and administrative legal findings to establish the preponderance of the evidence and show that one side outweighs, preponderates over, is more than the evidence on the other side. If this proceeds to civil trial, this is not necessarily done by number of witnesses or quantity, but in its effect on those to whom it is addressed.
(Glage v. Hawes Firearms Co. (1990)226360002
How to Establish the Preponderance
The chiropractor must “establish by objective evidence that a medical process consistently produces a result or end product, meeting its predetermined specifications, stating how validation will be conducted, including evaluation parameters and what constitutes acceptable test results” as follows:
a) Evidence that has greater weight or is more convincing in comparison to the evidence introduced by the defendant;
b) The majority of the evidence favors one side or the other as described by other courts and authorities;
c) Enough evidence has been produced by one side to create a belief that its version is more likely true than not.
Capsule Summary
The process of Independent Medical Validation and Medical Determination, Memorandum of Points, Statements of Undisputed Facts, Declarations, Exhibits and Authorities are intended to present evidentiary (Evidence-Based) burdens of proof in court admissible format to establish the preponderance, eliminate varying medical opinions and show the Greater Weight of the evidence. One of its purpose’s is to produce enough evidence based data by one side to create a belief that its version is more likely true than not.
Logon to www.independentmedicalvalidation to see and learn more.
Dr. Frank Liberti has a career spanning 35 years. His advice on personal injury has been published extensively and his work has appeared in broadcasts of NBC, CNN as well as Entrepreneur Magazine. He has consulted over 35,000 doctors and lawyers on the subject of personal injury and is a keynote speaker on personal injury across the United States. Early in his career he set precedent at the New Jersey State Supreme Court on the subject of personal injury and has authored five books on personal injury mandates of litigation.
Reach him at: 727-520-3962
