In a recent case, the question of whether the IME (Independent Medical Evaluation) letter asking specific questions is discoverable by the claimant’s counsel came about. As you may know, the IME letter from defense counsel to the IME physician is not discoverable. However, in this case, an IME company was sent a request from an adjuster for an addendum to an IME report that was not favorable. The addendum was then favorable in defense of a claim petition. At the deposition of the IME physician, the claimant’s counsel asked to review the file and notes of the IME doctor. In those notes was the letter from the IME company to the IME physician. Counsel then a made valiant attempt to enter the letter, which was basically questioning how the IME physician could come to the conclusion that the initial injury was work related, as evidence.

Cipriani & Werner, PC, of course, objected to the letter being submitted as evidence as privileged information; however, counsel raised the issue that a defense attorney had not sent the letter to the IME physician, it was a third party forwarding an email from an adjuster. C&W argued that the letter should not be allowed as evidence since the IME company was an agent of the defense attorney in this matter.

Due to the short, closed period of this case, the judge did not rule on the objection and the admissibility of the third party email as evidence, and found for the claimant. However, this case does raise concern and addresses the fact that IME letters, which summarize the case and medical records, asking specific questions to be answered, and requesting addendums or additional information should be authored and sent by an attorney in order for those requests to remain privileged.

Cipriani & Werner highly recommends that in the future, IME letters should be completed and sent by defense counsel to not only prevent the admissibility of the same as evidence, but to also assure that the IME physician and defense counsel have the same information in regard to defense of the claim.