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Claimant may be entitled to record Independent Medical Exams

Many auto-accident victims require physical therapy or the services of a chiropractor in order to recover from their injuries. These services can be expensive, but fortunately they are often covered by "PIP" (or Personal Injury Protection) benefits in an auto-insurance policy.

However, the reality is that insurance companies exist to make a profit, and the more they pay out in benefits (including PIP), the less profit they make. That is why insurers can be very aggressive in challenging claims for benefits, particularly PIP benefits. That is also why they sometimes require someone making a PIP claim undergo an "independent medical examination" (IME) with a medical provider - often one chosen by the insurer - in order to verify that the particular treatments sought are actually reasonable and necessary.

In many states, the insurers use vendors that contract with specific doctors to perform these IMEs, which means the same doctors are used over and over. Causing many to suspect that these doctors conduct IMEs with an eye toward keeping the insurance companies happy in order to ensure repeat business. To counter this potential bias, accident victims in many states have been seeking to either bring their attorney to the IME or arrange to have an audio and video recording made of the exam in order to verify that it's being conducted in an unbiased manner.

In a recent Massachusetts case, Amica Mutual Insurance Co. v. Olmo, the insurer claimed an accident victim's refusal to attend an IME without her attorney or a video recording amounted to "non-cooperation, providing grounds for denial of the claim. The trial court found that, while the failure to submit to an IME may be evidence of non-cooperation, it did not constitute to non-cooperation on its own. Thus, the insurer's denial of benefits under the non-cooperation clause was improper. The trial court held that the claimant's request to have the attorney present or to create an audio-visual records of the examination was reasonable and there was no breach of the cooperation clause. In making this determination, the trial court declined to apply a "good cause" standard, but noted that the claimant would have met that standard in any event in light of the doctor's relationship with the insurer and his routine and known practice of determining that claimants were not injured.

It appears that, based upon the Olmo, decision, an insurer will need to demonstrate that it will somehow be harmed if an IME is recorded or an attorney is present.

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