Physicians have two roles in disability determination: (1) recommending disability as the attending physician of their patients and (2) doing an independent medical examination consultation for disability granting organization (such as an insurance company or Social Security). These are two very different tasks.
First, it important to remember that we as physicians do not grant disability retirement. We can only recommend disability – disability retirement can only be granted by the employer, the insurance company overseeing the disability insurance policy for the employer, or the government agency providing disability benefits. Over the past 30 years, I have filled out hundreds of disability forms for my patients, done dozens of independent medical examinations for insurance companies or employers, and reviewed hundreds of independent medical examinations for organizations that grant disability. Here is what you need to know.
When is a patient disabled?
Put simply, a patient is disabled when they have a physical or mental impairment that prevents them from performing their job. The key words are “their job” – a medical condition that prevents someone from doing one job may not prevent that same person from doing a different job. For example, a partial foot amputation may be disabling for a road construction worker but not disabling for a telemarketer. Usually, disability benefits are granted when an employee can no longer do the job they were hired for, but some companies will not grant disability benefits if an employee can be retrained a different job within the company. For example, a factory worker who develops occupational asthma from a chemical used in manufacturing might be re-trained to work in the shipping department where finished products are stored.
In addition, disability is considered when the employee is unable to perform regular full-time duties despite reasonable accommodation. It is often far less expensive to the employer to provide an accommodation to an employee than to hire a replacement, train that replacement, and face increased disability insurance premiums if the employee goes on disability. As an example, an employer could assign an employee with knee arthritis an office on the first floor so that the employee does not have to walk up multiple flights of stairs every day.
Although there is a lot of variation between different disability-granting organizations, the common requirements to be granted disability include:
- The medical condition must either be new since the applicant began employment or if it is a pre-existing condition, it must have worsened since the date of initial employment.
- The medical condition must have a diagnosis (or tentative diagnosis). A symptom alone, such as shortness of breath, is generally not grounds for disability unless there is a diagnosis to go along with it (such as COPD).
- The medical condition must be of sufficient severity to prevent the applicant from doing their regular employment duties.
- The medical condition is expected to be “permanent”. This generally means lasting at least 12 months. In this sense, permanent does not necessarily mean forever.
- There must be objective evidence that the condition causes impairment. For this reason, it is very difficult for patients with chronic pain syndromes (migraine headache, fibromyalgia, etc.) to get disability without collaborating x-ray, EMG, or physical examination abnormalities. Similarly, applicants with conditions such as chronic fatigue syndrome that lack abnormalities on diagnostic tests are often denied disability.
The attending physician’s role
When a patient applies for disability through their employer, one of the first steps is for the employer (or employer’s insurance company) to contact the patient’s attending physician to get detailed medical information. Before giving out any information to the employer, the attending physician must confirm that the patient has given permission for release of their medical information. I was almost conned once when a patient’s ex-spouse sent me a letter requesting medical information posing as an employer. However, there was no signed release of information document and when I contacted the patient to clarify the medical information release, I found out that it was all a ploy.
These disability forms are often several pages long and can require as long as a half hour to complete. The time required to fill these forms out is usually not billable to the patient’s regular health insurance company so it is a good idea to have a written office policy for form completion with a fee schedule for filling out disability paperwork. Usually, payment of these fees is required in advance from the patient. If medical records are requested, then a per-page copying charge is also common practice. Although some disability insurance companies will pay a fee for the physician to complete these forms, most of the time it is the patient’s responsibility to pay for form completion. In my own practice, if the form only required a minute or two of my time, I would not bother to bill the patient – it often took more time to create the bill than it did to fill out the form. But for extensive forms, for patients with multiple disability applications, and for requests for extensive photocopies of medical records, I would require payment.
The information required will vary by employer/insurance company but in general, there are several things that they will want to know:
- What is your diagnosis? This should be a medical condition and not a just a symptom. If the patient’s work-up is in progress and you are not yet sure of the specific diagnosis, then indicate that the diagnosis is suspected. If the work-up is just beginning, then it is reasonable to report that you require “X” number of weeks to determine a diagnosis – in that situation, the patient can apply for temporary disability pending full medical evaluation.
- What are the disabling symptoms? Common symptoms contributing to disability include dyspnea, impaired mobility, visual impairment, angina, fatigue, cognitive impairment, etc.
- Is the patient’s medical condition permanent or temporary? Many conditions that are disabling today may improve with a treatment period of 6 months or so. Permanent disability means impairment lasting more than 12 months. Employers will generally be less strict about granting temporary disability benefits and will often approve temporary disability with a simple administrative approval. Permanent disability requires a more extensive process that generally involves getting one or more independent medical examinations and may involve a disability hearing.
- When did the condition become disabling? A condition that was disabling before the patient began his/her employment will generally result in denial of disability benefits.
Attending physicians have an inherent conflict of interest when filling out disability paperwork. The physician may not want to disappoint a patient with whom they have longstanding doctor-patient relationship. The physician may get pressured by the patient to help them get disability benefits. Or the physician may fear that the patient will leave the practice if the physician does not support their disability application. Because of this conflict of interest, most employers and disability insurance companies will require an independent medical examination prior to determination of permanent disability.
The independent medical examiner’s role
If the patient’s attending physician recommends disability retirement, the next step in the disability process is usually an independent medical examination (IME). This is done by an impartial physician having no relationship with the patient. The physician should be experienced with the patient’s medical condition and should be knowledgeable about the evaluation of impairment.
Agree on a fee
The IME should be billed to the employer or disability insurance company and not to the patient’s health insurance company. In a large medical practice, this will require you to make prior arrangements with your billing department so that the bill does not inadvertently go out to Medicare or the health insurance company. Most practices will set their fee schedule to charge more than whatever their best paying commercial health insurance contract will pay (anything over that contractural amount is written off). An IME is one of the few times that the physician actually gets paid the amount of their fee schedule. Before agreeing to do an IME, be sure that there is a fee schedule agreement in place. Most IMEs will be a level 4 or level 5 consult. Also, determine up front if additional testing will be covered. Usually, simple office tests such as an EKG or office spirometry will be covered but more extensive testing such as full pulmonary function tests, stress tests, and formal neuropsychological testing requires prior approval.
Review the records
An IME is essentially a consult and like any consult, it starts with a review of the medical records. These can range from a few pages of office notes to thousands of pages of electronic medical record print-outs. My practice was to review these prior to the patient’s office visit and then keep track of the time required. If the records are excessively voluminous, then get an agreement up front about an additional hourly fee for extensive record review.
Do a complete H & P
An IME is usually a comprehensive evaluation and should include a full history, past medical history, review of systems, physical examination, and summary of previous testing. The physical exam should at least cover the areas relevant to the patient’s symptoms. That means documenting a mental status exam in a patient applying for disability due to a psychiatric condition or documenting a cardiac exam in a patient applying for disability due to heart failure. Although it is important to be thorough, when it comes to your final report, more documentation is not necessarily better. I have seen IME reports in excess of 50 pages long with extraneous filler documentation. For example, when reporting a disability applicant’s dietary history, summarize it in 1-2 sentences and don’t list a menu of everything they ate in the past two weeks. Be complete but also be concise.
What is the diagnosis?
The primary diagnoses should be what you have determined that the patient has based on your evaluation. Frequently, your diagnosis may differ from the diagnosis given by the patient’s attending physician(s). Because the IME reports are often sent to the patient’s regular physicians, it is best to word your opinion non-judgmentally. Rather than saying “I determined that the patient has osteoarthritis and disagree with the patient’s treating doctor that she has rheumatoid arthritis”, it is better to state: “My diagnosis is osteoarthritis and I find no evidence of active rheumatoid arthritis at this time.” This allows the patient’s regular doctor to save face and avoids engendering a combative relationship between the doctor and the patient’s employer or disability insurance company.
State why the patient is impaired to perform regular full-time work duties
This generally requires you to have familiarity with the patient’s job description. Simply having a medical condition does not equate to disability; that medical condition must result in a physical or mental impairment that prevents the patient from doing their job. Whenever possible, include objective testing or physical examination findings that confirm impairment. For example, “The claimant has COPD with severe obstruction on spirometry and an oxygen saturation of 82% on room air that indicates a need for supplemental oxygen. The need for oxygen precludes continued work as a furnace repairman”.
Estimate recovery time
Permanent impairment generally implies that a patient will be disabled for more than a year. But that does not always mean that the patient will be disabled forever. For example, a patient with liver failure due to cirrhosis may be disabled today but may be able to return to work two years from now if the patient undergoes liver transplantation. Disability benefit recipients frequently undergo periodic re-evaluation to determine if benefits should be continued or terminated. It is within your purview to advise when such a re-evaluation should occur.
Know where to send the report
The physician performing the IME is being consulted by the employer, insurance company, or government agency that requested the IME. The final report should be addressed to them and not to the patient’s primary care physician or other treating physicians. It is best to not send copies to the patient’s attending physicians – that responsibility usually lies with the organization requesting your IME.
You are not the treating physician
Specialists are accustomed to providing treatment recommendations in consultation reports. An IME is a very different type of consultation. It only involves evaluation and not management. Nor will you be doing any follow-up. Do not prescribe medications. Do not refer the patient to another specialist. Do not order tests without prior approval by the agency requesting the IME. Do not recommend specific treatments – the agency requesting your IME does not have the authority to prescribe medications or initiate work-ups. However, if you find something potentially life-threatening, the it is appropriate to call the patient’s attending physician to alert them. For example, I once did an IME that included getting a chest X-ray. The X-ray showed a probable undiagnosed lung cancer. I called the patient’s primary care physician so that he could initiate a work-up. I included documentation of the finding and my conversation with the attending physician in my IME report for medical-legal protection of both me and the agency requesting the IME.
Unsuitable for a job does not mean disabled for that job
Unlike conditions such as depression, schizophrenia, and bipolar disorder, personality disorders are rarely grounds for psychiatric disability. However, personality disorders can cause a person to be unsuited for a particular job. For example, a customer service employee with an anti-social personality disorder who punches one of the company’s clients does not warrant disability retirement on the basis of his personality disorder. Personality disorders usually originate in childhood and pre-date employment. One out of ten Americans have a personality disorder – there is not enough money in the U.S. economy to give them all disability retirement.
Similarly, an employee who who develops anxiety because of consistently poor job performance evaluations does not warrant disability retirement on the basis of anxiety disorder. A vegetarian who develops dysthymia when working at a slaughterhouse should not be put on psychiatric disability. These are jobs that they were never suited for in the first place.
Disability determination can be particularly difficult when an employee is not suited for a particular job and then that in turn results in psychiatric symptoms, such as anxiety, depression, or aggression.
Common disability conundrums
- Asthma. A confident diagnosis of asthma requires both a history compatible with asthma and obstructive changes on spirometry. I have frequently seen patients who apply for disability due to treatment-refractory asthma who have had multiple spirometry tests that were all normal. These patients may have asthma but if they never have obstruction on pulmonary function testing, then their asthma is unlikely to be of sufficient severity to warrant disability retirement. Often, they have an alternative diagnosis, such as vocal cord dysfunction. Occupational asthma can be more problematic since patients may only have obstructive changes when they are actually in the workplace. In this situation, obtaining workplace spirometry is ideal. At the least, a methacholine challenge test in the pulmonary function laboratory to confirm inducible bronchospasm should be obtained.
- Diseases causing dyspnea. Like pain, dyspnea is a subjective symptom. However unlike pain, dyspnea has quantifiable findings with pulmonary testing. When patients claim disability due to conditions causing dyspnea, there must be objective evidence of pulmonary (or cardiac) impairment. This generally means a full set of pulmonary function tests for patients with lung disease. If the patient’s subjective dyspnea is out of proportion to the PFT findings, then a cardiopulmonary exercise test can be valuable. If the dyspnea is also significantly out of proportion to the exercise test findings, then disability retirement will generally be denied.
- Heart failure. Medical science has greatly improved the management of congestive heart failure over the past 25 years. With beta-blockers, ACE inhibitors, and cardiac rehab, patients can have substantial improvement in their exercise tolerance and even normalization of their left ventricular function over time. Do not rely solely on cardiac imaging tests and stress tests from many years in the past. If you are not sure of the patient’s current hemodynamic status, it is reasonable to ask that new testing be performed. However, do not rely on overly simplistic, “one-size-fits-all” ejection fraction thresholds for disability determination. For example, an ejection fraction of 40% might be disabling for longshoreman but not disabling for an accountant.
- Chronic pain syndromes. Pain is real but is unfortunately not objectively measurable. Moreover, major goals of comprehensive chronic pain management programs are not just to control pain (with medications, physical therapy, etc.), but also for the patient with chronic pain to be able to live as normal of a life as possible despite pain. Exercise is a major component of the management of chronic pain, particularly in conditions such as fibromyalgia. Disability retirement can often make chronic pain more difficult to manage by fostering a more sedentary lifestyle. For these reasons, conditions such as chronic migraine and fibromyalgia are rarely grounds for permanent disability unless these conditions are accompanied by objective findings on X-rays or other tests.
- Depression. Psychiatric conditions, such as depression, pose significant challenges for independent medical examiners. Unlike medical conditions such as heart failure and asthma, the examiner relies almost entirely on the patient’s history and the mental status exam. The degree of depression is important – major depression is generally disabling but dysthymia is generally not disabling. Also, disability applicants can sometimes overstate their symptoms in order to obtain disability – the use of inventory questionnaires that identify exaggeration, overstatement, or malingering can be valuable. Depression tends to improve with time and treatment, so re-examination for continuation of disability benefits in 1-2 years is usually advised. Sometimes, patients (or their attending physicians) will have significant improvement in dyspnea but will claim that return to the workplace will cause their depression to relapse. This is frequently more of an unfounded fear than a real threat. A compromise can be a gradual return to work with careful psychiatric follow-up during the return.
- Obesity. This is becoming an increasingly difficult issue for employers and disability insurance companies due to the rapid rise in obesity rates in the United States. Obesity by itself is generally not grounds for medical disability but the complications of obesity can be (arthritis, etc.).
- Sleep disorders. Sleep apnea and narcolepsy are very common. In the past, these were almost always grounds for disability retirement. However, with advances in CPAP devices for sleep apnea, most workers with sleep apnea can be adequately controlled. Moreover, most current CPAP devices can be interrogated to determine patient compliance. Similarly, pharmacologic therapy has greatly improved outcomes in patients with narcolepsy. There are simply too many Americans with sleep disorders to give everyone disability retirement. In order to be impaired, there should be evidence of patient compliance with treatment and a recent polysomnography test (for sleep apnea) or multiple sleep latency test (for narcolepsy) while the patient is on maximal medical therapy in order to substantiate impairment.
- Cancer. In past editions of the American Medical Association’s Guides to Permanent Impairment, it was stated that patients with cancer should be considered impaired for 5 years after a cancer diagnosis. Cancer treatment has come a long, long way since then and simply having cancer does not imply that the patient is impaired from their cancer. For example, some leukemias can be cured with stem cell transplant. Chronic lymphocytic leukemia can be well-controlled with medications for years or decades. Patients with breast cancer are frequently able to be cured with surgery, radiation, and chemotherapy (even those with axillary lymph node involvement). Grounds for disability due to cancer can include disabling side effects of treatment (for example, nausea and vomiting from chemotherapy), progression of cancer despite treatment, and advanced cancer with no reasonable hope for response to treatment.
- Immunosuppression. Drugs used to chronically suppress the immune system are more widely used than ever before – for cancer chemotherapy, for transplant rejection prevention, and for inflammatory disease treatment. These drugs can impair the body’s ability to fight off infectious diseases. Many workers are regularly exposed to infectious diseases in their workplace: flight attendants in crowded aircraft, teachers in classrooms fully of children with colds, and healthcare workers caring for infected patients. Fortunately, most of these workplace exposures are to respiratory viruses. For viruses such as influenza and COVID, there are effective vaccines. Most of the other common respiratory viruses (such as common cold viruses) are generally not excessively risky to immunosuppressed persons. Instead, the immunosuppressed person’s greatest danger is from bacterial infections and opportunistic viruses such as CMV – these pathogens are generally not readily transmitted in a workplace. When assessing impairment from immunosuppression, the independent medical examiner should consider the risk of the specific pathogens that a disability applicant is likely to be exposed to in the workplace.
- COVID. In the beginning of the pandemic, some workers applied for disability if they had risk factors for severe COVID or death from COVID if they were to have a workplace exposure. This was a challenge because almost every workplace had the potential for exposure to infected people. Further, with COVID risk factors of age over 60 years old, obesity, hypertension, and diabetes, an enormous percentage of the U.S. workforce was at risk. Now, with effective vaccines that can prevent severe infection and death, there are few, if any, situations where workers with risk factors should be put on disability retirement. Nor should personal refusal to get vaccinated be grounds for disability retirement.
The importance of fair disability processes
Ultimately, disability benefits are paid by employees. Social Security disability is paid for by all of the workers who contribute to Social Security in the form of payroll taxes. Insurance companies fund disability benefits from employee disability insurance premiums. Workers compensation is funded by premiums paid by employers who then include the cost of those premiums in employee benefits. The role of the independent medical examiner is to ensure that those workers who are truly disabled have access to benefits and to protect those benefits from being used up by those who are not truly impaired.
May 16, 2022