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Injured Workers Feel Betrayed
March 31, 2009

Dr. Hershel Samuels, an orthopedic surgeon, put his hand on the worker's back. "Mild spasm bilaterally," he said softly. He pressed his fingers gingerly against the side of the man's neck. "The left cervical is tender," he said, "even to light palpation."

The worker, a driver for a plumbing company, told the doctor he had fallen, banging up his back, shoulder and ribs. He was seeking expanded workers' compensation benefits because he no longer felt he could do his job.

Dr. Samuels, an independent medical examiner in the state workers' compensation system, seemed to agree. As he moved about a scuffed Brooklyn office last April, he called out test results indicative of an injured man. His words were captured on videotape.

Yet the report Dr. Samuels later submitted to the New York State Workers' Compensation Board cleared the driver for work and told a far different story: no back spasms, no tender neck. In fact, no recent injury at all.

"If you did a truly pure report," he said later in an interview, "you'd be out on your ears and the insurers wouldn’t pay for it. You have to give them what they want, or you're in Florida. That's the game, baby."

Independent medical exams are among the most disputed components of New York's troubled workers' compensation system. Under that system, workers with bona fide injuries are entitled to medical care and replacement wages, usually paid for by their employer's insurer.

The independent exams are designed to flush out workers who exaggerate injuries or get unnecessary care, and there is no question that some of that goes on. As a check on what a worker's doctor determines, insurers are allowed to order an ostensibly neutral exam by a doctor they select and pay for. They do so regularly, with more than 100,000 exams conducted each year.

But a New York Times review of case files and medical records and interviews with participants indicate that the exam reports are routinely tilted to benefit insurers by minimizing or dismissing injuries.

"You go in and sit there for a few minutes - and out comes a six-page detailed exam that he never did," said Dr. Stephen M. Levin, co-director of the occupational and environmental medicine unit at Mount Sinai Medical Center, who has been picked as the interim medical director at the compensation board. "There are some noble things you can do in medicine without treating. This ain't one of them."

New York uses independent medical examiners far more extensively than many states do, and critics say the practice adds to the mistrust in the system. The examiners' opinions can empower an insurer to slash benefits, withhold medical treatment or stall a case. Workers say that psychologically, there is something particularly damaging about being dishonestly evaluated by a medical professional.

"I was in so much pain and felt so hopeless for so long," said Carol Houlder, a substance abuse counselor who waited a year for surgery on her injured ankle to be approved. "Doctors see you’re in pain and say you are not. How do they call themselves doctors?"

Many independent examiners are older, semiretired physicians who no longer treat patients, and claimants and lawyers have asserted that the memories and judgments of some of the doctors have at times been impaired by their age and frailties. The examiners do not need special training, only to have a state license and to be authorized in a specialty.

"Basically if you haven't murdered anyone and you have a medical license, you get certified," said Dr. Alan Zimmerman, 75, a Queens orthopedic surgeon who does the exams. "It's clearly a nice way to semi-retire."

Some examiners see dozens of injured workers a day. Often the appointments are booked by brokers who help insurance companies find doctors. Some brokers are not registered with the state, as required, but there has been little enforcement of the rules.

Insurers, examiners and brokers, however, defend the exams as necessary and largely untarnished by bias. Dr. Brian L. Grant, chairman of Medical Consultants Network, a company based in Seattle that arranges independent exams across the country, said, "We never get pressure from an insurer."

Many workers contest independent medical examiner opinions and often prevail. Judges can, and do, dismiss the exam findings. In fact, some lawyers and judges laugh when certain examiners' names come up at hearings.

Dr. Kenneth E. Seslowe, an orthopedic surgeon who mainly does independent medical exams, is mocked at hearing offices by attorneys as Dr. Says-No, because they feel he consistently finds no disability. Asked about this, Dr. Seslowe said, "I really don't have time for this."

But even when the opinions are discounted, resolution can take months, years, even decades, and many workers, tired of the ordeal of five, six, seven exams, eventually give up.

Some examiners, of course, do furnish honest, well-reasoned opinions. And sorting out the yawning breach between what a worker's doctors and an independent medical examiner conclude is complicated by the fact that some injuries and their impact on a person's ability to work - especially soft-tissue injuries like those to the back and neck - are hard to document with indisputable tests.

Zachary S. Weiss, the chairman of the workers' compensation board, said that he found the disparities in medical opinions shocking and that use of independent examiners was "off the charts." But Mr. Weiss, who was appointed in late 2007, said he was unsure what would rectify the problems.

After nearly a dozen years without a medical director, the board has finally filled that job temporarily. It has introduced new, more detailed forms, which many doctors find maddening. It is also working on fresh guidelines that it hopes will better calibrate an injured worker's care and work limits.

Dr. Robert E. Bonner, the medical director of the Hartford, an insurance company, said it was clear that the landscape had polarized. "Physicians regrettably have moved away from being neutral observers," he said. "They've moved toward one camp or the other."


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