Do I Have to cooperate during a neuropsychological IME Exam requested by the disability insurance company?

Disability insurance companies are notorious for requesting Independent Medical Exams (IME or CME) in an effort to try to deny disability benefits. Our disability insurance lawyers have helped thousands of claimants to prepare for these obviously unfair and often biased examinations. Unfortunately disability claimants are required to attend an IME exam and cooperate while being examined. Let’s take a look at a recent ERISA disability denial lawsuit in which a claimant a neuropsychological IME exam but failed to cooperate with the examiner.

Claimant Denied Disability Benefits After 12 Years Due to Failure to Cooperate

A Federal Appellate Court recently upheld the termination of disability pension benefits under an ERISA governed plan for a claimant who had been on claim for 12 years due in part to her failure to cooperate during a Plan ordered Independent Medical Examination (IME). In finding that the Plan did not abuse its discretion in denying benefits, the Court noted that the Plan conditioned continued eligibility for disability benefits on “compliance with recommended treatment” and “cooperation during evaluations requested pursuant to the Plan.” During the course of the claim, one of the claimant’s treating doctors noted that she was no longer in compliance with recommended treatment, which in turn raised a red flag and prompted an evaluation of her claim by the Plan.

In evaluating the claimants continued eligibility for disability benefits, the Plan informed the claimant that she must attend an IME to include neuropsychological testing. Following initial refusal by the claimant, she finally underwent the testing. The results of the testing indicated that she put forth inadequate effort, exaggerated her symptoms, and possibly malingered. Based upon what was deemed her failure to put forth adequate effort and “cooperation during evaluations requested pursuant to the Plan” her benefits were denied. The claimant appealed the denial twice, filed a lawsuit and lost, and then appealed the initial court decision to the Appellate Court.

Appellate Court Agrees With Lower Court And Upholds Disability Denial

During appellate review, the Court noted that the claimant was granted the opportunity to submit additional documents to explain her test performance, and that the information provided on appeal failed to show she was incapable of participating in the IME. The Court, in rendering its decision, even points to the fact that the Claimant had been able to adequately perform the requested testing less than two years earlier.

The Court ultimately made the following findings:

  1. It was not unreasonable for the Plan to require attendance at two IME exams in an 18 month span;
  2. It was not unreasonable of the Plan to require her to attend the neuropsychological IME; and
  3. The claimant’s failure to comply with treatment and to cooperate during the IME evaluation were reasonable grounds for termination of benefits.

Lessons Learned From This Recent Disability Denial Lawsuit

This recent case serves as a reminder that it is extremely important that a claimant comply with all provisions of a Plan. We have previously discussed the importance of attending required Independent Medical Examinations, and that the failure to do so could result in the denial of benefits. This case takes this discussion and evaluation one step further by holding that attendance alone is not enough, that adequate effort and cooperation must be given during an IME. However, it must be noted that the ERISA governed Plan at issue in this case specifically stated “cooperation during evaluations requested pursuant to the Plan.” Each Plan (or Policy) can be written with different language, so it is important to know and understand your duties under your particular Plan. This case also serves as a reminder that disability benefits, be it from a disability pension plan or disability insurance policy, are not guaranteed benefits and that entitlement to benefits will be continually reviewed on a month to month basis. Lastly, this claimant could avoided this entire situation if she had complied with her treating physicians treatment plan and had supporting documentation from her treating physician.

For more information on Independent Medical Examinations please see “What should I expect when I attend an IME exam requested by my disability insurance company” and “Do I have to attend an IME requested by my disability insurance company?“. If your insurance company is requesting you submit to an IME or you have questions regarding your claim for benefits please contact Attorneys Dell and Schaefer for a free consultation.

Comments (20)

  • Pamela, unfortunately if you refuse the neurospych IME you can be denied on that basis. Just make sure that the carrier is paying for the test as well as your transportation to and from.

    Rachel Alters Jun 22, 2019  #20

  • I’ve recently been diagnosed with myalgic encephomylitis with secondary fibro. Although I have significant cognitive deficits leaving me unas be to even remotely function as an RN, that physical symptoms are just as devastating. I’m homebound at least 5 days a week due to “crashing” from the ME. LTD is requesting neuropsych testing. Although I know I have to jump through their hips, my physical deficits solely should qualify me for LTD. I have extremely limited ability to get to an exam and spend the excruciating amount of time performing it. I’ll possibly (probably) crash during the test and be unable to abide by the requirements. Since the vast majority don’t even believe in ME, how will this be seen? I don’t want to get the results back as being non compliant.

    Pamela R. Jun 22, 2019  #19

  • George, we do not typically recommend refusing an independent examination as case law does support that failure to attend requested examinations is grounds for a denial of benefits. Please feel free to contact our office if you would like to discuss your claim in greater detail.

    Stephen Jessup Jul 24, 2017  #18

  • I have an owner/occ policy with Unum that I bought in the early 90s. I suffered from cancer which left me with cognitive losses and depression/anxiety diagnosis. I’ve been on claim for ten years based upon these diagnoses. Now they want me to attend a neuropsych exam to compare to a neuropsych exam result from 2009 to see if there are any differences. Here is the rub. The policy only has a paragraph that gives them the right to IME physical examinations. I’ve pressed them on the issue and so far this is the only part of the policy that they point to. Am I within my rights to avoid the exam because there is no policy right other than a right to demand physical examinations?


    George R. Jul 18, 2017  #17

  • Michele, please feel free to contact our office to discuss your claim and the IME that is being requested.

    Stephen Jessup Oct 13, 2016  #16

  • I have been on LTD for a little over a year and am awaiting a date for a hearing for social security. I have many medical issues depression, anxiety, anger issues, social anxiety, panic attacks and memory issues. Have a progressive case of sarcoidosis and had a brain aneurysm which they inserted a attend. Pulmonary hypertension, tachycardia and I am sure others I am forgetting. I am on oxygen 24/7 for my lungs to Rahe the stress off my lungs. Also on 15 or so medications. They are sending me for a IME I am sure so they can deny my claim. Why with do many medical issues would they try too and this is causing against anxiety which is making my visiting worse.

    Michele S. Oct 9, 2016  #15

  • Lia, I am a little confused as to the fact pattern- MetLife is not allowing you to return to work based on your LCSW’s notes?

    Stephen Jessup Apr 14, 2016  #14

  • I seen an IMExaminer yesterday. My insurance company want to prove me not fit to work based on notes a LCSW sent them. To my understanding, the LCSW falsified documents ( made my illness worst than what it was) in order to have me approved out of work. The LCSW never counseled me and refused to send my actual notes from my counselor ( which I later dicovered was an intern) to METLIFE. My counselor, psychiatrist and I decided It was best that I returned to work but METLIFE rejected it due to the notes the LCSW sent. The IME ” interrogated” me for a little over 2 hours, took a urine sample and tested it, and interrogated me for another half hour. While I’m sitting there thinking to myself ” all this to go to work?”. METLIFE is no longer paying my benefits because my STD expired and I did not request LTD. Why all of the dramatics? I need to know at this point should I seek an attorney because during the interview I can clearly see that the medical examiner was for METLIFE

    Lia Apr 13, 2016  #13

  • KR,

    I am unfamiliar with any law requiring audio recordings for IMEs. That being said it is highly unusual for a neuropsychological or psychological exam to be recorded due to the heightened concerned for privacy relating to psychological testing/records.

    Stephen Jessup Apr 22, 2015  #12

  • My husband has been on LTD through MetLife since Sept. of 2013 due to injuries from a car accident. They have recently requested two IME’s, one of which we have already attended. That doctor made an audio recording of the appointment and told us it was required by Colorado law to audio record all IME’s. We wanted it recorded and were glad. At the second appointment, a neuropsych appointment, the doctor refused to let us audio record even the interview and would not perform the exam. She told us that was unheard of and no one had ever made that request before. She called the insurance company’s IME scheduling contractor and they said they would try to find a doc that was comfortable with being recorded. They just made us another appointment with the same doctor (after telling him he would be seen by someone else) and said she will not allow recording, but if we don’t do the exam my husband will be kicked off. Does the Colorado audio recording law only apply to workman’s comp cases for IME’s? If so, since Colorado is a one party state, can my husband audio record the appointment discreetly and legally since it is his own medical evaluation?

    K.R. Apr 21, 2015  #11

  • K.T.,

    At this point if Aetna is already sending you to IMEs such a short time after your benefits were reinstated there is a clear indication and agenda that Aetna is looking to deny your claim. I have personally handled cases for clients with the BofA Aetna policy and do not recall Aetna requesting IMEs or acting in a manner as they are with you. No lawyer can squash an IME as the policy gives them the right to have you examined at their expense. Furthermore, the law is clear that failure to attend the IME is a reasonable ground to deny a claim for benefits. I would attempt to take a witness or have the exam videotaped if they will allow it. If you have any additional questions please feel free to contact our office.

    Stephen Jessup Sep 11, 2014  #10

  • I have been on LTD BofA (ERISA) for the past 12 months for both physical and psychiatric conditions. Now, I’ve received a letter notifying me that Aetna is going to schedule 2 IME’s for me and I know I have to attend but I don’t know the dates and the times yet. Is there anything your firm could do to give me advice before I go to these IME’s? I live in TX and I’m going to try to take a witness with me. I am 100% sure that Aetna will deny my claim once they receive the reports from the doctors. I recently appealed a LTD denial just a couple of months ago on my own and I won the appeal and they had to give me 3 months in back-pay and now, here we are, at the IME stage. I plan on retaining your firm once my claim is denied so that your company can handle the appeal this time as long as the fee is fair. This whole process has been a nightmare and has taken years off my life. I guess my main question is can your firm make it more difficult for them to deny my claim before I go to these IME’s? I wish I could avoid having to go. Can you squash these IME’s? Please point me in the right direction. Thank you.

    K.T. Sep 11, 2014  #9

  • Lilly,

    A request for Raw Data by the insurance carrier is not uncommon as the results of the Report drafted by your doctor is based on the Raw Data. This Raw Data is open to interpretation by the doctor. Please note that Raw Data can only be released by your doctor to another qualified neuropsychologist, and usually requires a specific release be signed by you.

    Stephen Jessup Mar 25, 2014  #8

  • I was examined by a neuropsychologist and a report was sent to the insurance company indicating I was disabled an could not work. I have MS and now the insurance company wants the raw data from that exam, I thought raw data was protected info… Am I wrong and does the insurance company have a right to this info?

    Lilly Mar 24, 2014  #7

  • Jon,

    If you are disabled by bipolar and nothing else, then you should be encouraged by the IME doctor’s comments to you. If you are only seeking 24 months of benefits due to a psychiatric condition, then it unlikely that your claim would be denied based upon the feedback you received.

    Gregory Dell Feb 19, 2013  #6

  • I went for an IME neuropsych exam. The doctor said to my surprise that “I’ve seen you only once and I feel you have bipolar disorder, which your doctor might disagree with”. He also stated that there seems to be some interaction with my work and my bipolar, and I should probably seek a less stressful occupation.

    My policy is food “own occupation” with 7 months left until the 24 month maximum. He said I shouldn’t fault the job too much, because I’ve been out of the work environment a long time and still haven’t improved, “it’s the bipolar that is messing you up” and (in his opinion) needs to be managed as a bipolar case. He also commented on the history I have on both parents side of bipolar, I saw him write down, “clinical history is consistent with bipolar disorder”.

    Should I be encouraged by this?

    P.S. I meant to say the IME Doc thought it was bipolar II vs my Doc’s diagnosis of major depression (but my doc wouldn’t take exception to that as he was considering changing my medications to bipolar based on some recent psych tests I took).

    Jon Feb 17, 2013  #5

  • John,

    Good luck. Be honest with all of your answers and do not exaggerate any of your symptoms during the exam.

    Gregory Dell Feb 7, 2013  #4

  • Mr. Dell – thank you for your reply, I forgot to mention I called to confirm the appointment and they said it would only take a half hour which to me seems ridiculous. For the insurance company to not have any requested updated information about my case since August, and to then use a half hour doctors appointment to base a denial on is sketchy but not without precedent as I’ve read on this helpful blog. The tests I took are as close to objective evidence as you can get with mental health, the MMPI has validity scales to detect malingering, and the WAISS IQ test, was a good assessment of my impaired memory and processing speed which was low compared to my higher scores on the verbal IQ measures which is exactly how similarly educated depressed patients in a published clinical trial performed, almost identical. So I’m hoping that would trump their puppet doctor’s 30 minute exam on an appeal if they terminate the claim. It won’t take me 30 minutes to realise who’s the fraud in the room! I seldom leave home, so if they’re expecting to see me throwing back beers at the local tavern or shopping at Sax they’ll be disappointed. Thanks again for your reply, I will definitely call you if the claim terminates to help with an appeal. BTW they denied my request to video tape, audiotape or bring a witness.

    John Feb 6, 2013  #3

  • John,

    A real neuropsychiatric examination should be at least 6-8 hours long. The test should involve a 2-3 hour initial interview and then a battery of test selected by the doctor. It is good that you have an MMPI already as if you are given another one, then you can compare any potential inconsistencies. The medical literature suggest that neuropsych testing should never be repeated more than once a year. A good neuropsych during an initial examination should ask if you have taken any psych test at anytime and when. You should request to have the interview videotaped or have a court reporter present. It is comical that the insurance company told you that there is a lack of objective evidence on a depression claim. What could they possibly expect you to give them that is objective? Unlike a broken bone in your body, there is no objective test for depression. A diagnosis of depression and anxiety is based upon an evaluation of your complaints. Good luck with your exam and if you need assistance, feel free to contact us.

    Gregory Dell Feb 6, 2013  #2

  • I have been scheduled for a mental health IME with a neuro psychiatrist for an ongoing claim. Insurance company has not requested updated medical info since August. One of their psych nurses interviewed me by phone back then and told my doctor their was a lack of objective findings or functional assessment, but the claim still continued approved. Because I was worried about this I voluntarily underwent an MMPI personality test and a WAIS III IQ test. The MMPI test showed significant active symptoms of depression and anxiety and no signs of malingering, the IQ test showed impaired memory function and slow processing speed consistent with depression all favourable to the claim.

    My question is, the insurance company has not asked for this or any new info, do I voluntarily send it before the IME, or wait until they generate a report to my doctor and then send it?

    My feeling is the latter because if they have it prior it will give them a chance to poke holes in it! It seems ridiculous that they haven’t asked for updated info in that long which leads me to believe they are going to base their denial on a 30 minute examination by a doctor so old he probably won’t live through the appeal (I looked him up he has been a doctor for 44 years).

    John Feb 5, 2013  #1

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