Prepared for: REDACTED REFERENCE SAMPLE
File Reference: N/A
IME Physician: William F. Boucher, MD
Date of IME: September 18, 2024
Claimant: Tom Sample
Important: This is a redacted sample. Names, locations, and dates have been modified to protect confidentiality.
Dr. Boucher declares maximum medical improvement three months after the treating orthopedic surgeon explicitly documented that MMI had not been reached and treatment options remained available. The MMI determination supports conclusions that no further treatment is medically necessary and that impairment can be permanently rated. But those conclusions depend on a clinical judgment the treating surgeon documented as premature. Once that foundation becomes indefensible, the impairment rating, medication appropriateness critique, and work capacity restrictions lose the temporal anchor that makes them relevant to settlement valuation.
Primary Vulnerabilities
The impairment rating depends on a 2.5 cm leg length discrepancy measurement that matches neither the 2.8 cm clinical measurement Dr. Kinko documented in June 2004 nor the 1.1 cm radiographic femoral shortening visible on imaging. Dr. Boucher describes no measurement technique, patient positioning, or methodology. The treating record provides two defendable measurements with documented methods and explicit clinical reasoning distinguishing functional from radiographic measurement. The IME provides a figure that appears constructed rather than measured.
That becomes difficult to defend when the treating surgeon testifies about the 2.8 cm functional discrepancy and explains why clinical measurement governs impairment rating under the AMA Guides.
The causation analysis attributes new-onset low back pain to preexisting facet arthropathy, obesity at a documented BMI of 25, and symptom magnification derived from a pain drawing the report does not describe or interpret. Dr. Kinko’s June 2004 note documents the same facet changes visible on 2003 imaging but explains why mild arthrosis does not account for symptom severity given documented gait abnormality and progressive leg length discrepancy. The temporal relationship between structural progression and symptom onset supports compensatory mechanical pain.
The IME does not address that reasoning or explain why facet changes visible in 2003 would produce symptoms beginning in late 2002.
The symptom magnification conclusion depends on the pain drawing but conflicts with the Pain Disability Index score of 13 percent and depression screening score of 10. The patient completed both during the same examination. Dr. Boucher describes both as indicating minimal perceived disability and no depression.
The work capacity analysis restricts walking to 15 minutes per hour despite documented functional walking of one to two miles daily and examination findings showing normal gait, symmetrically normal hip range of motion except bilateral external rotation limitation, and current pain rated 2/10. Dr. Boucher states Mr. Sample “assumes he is unable to sit, but I can find no objective reason why that should be the case.”
His own examination documents left paraspinal tenderness L3-S1 and positive Patrick’s test reproducing left SI pain. Those are objective findings.
The sitting limitation dismissal directly contradicts the IME’s own physical examination results.
The medication appropriateness critique concludes Avinza and Neurontin are inappropriate given “the lack of objective reason for the examinee’s pain complaints and the ineffectiveness of the medication.” Dr. Kinko’s June 2004 note documents Avinza was initiated after failed trials of celecoxib, tramadol, and two courses of physical therapy. The patient demonstrated stable use without dose escalation over fourteen months. Neurontin produced approximately 40 percent reduction in neuropathic pain consistent with lateral femoral cutaneous nerve involvement.
Dr. Kinko also documents objective findings including decreased range of motion in all planes, hardware site tenderness, pain with resisted abduction, and positive Trendelenburg sign. The IME does not acknowledge these documented treatment rationales, prior failed therapies, or the constrained pharmacologic options Crohn’s disease created.
Primary Concession Targets
Dr. Kinko’s explicit statement that MMI had not been reached in June 2004 requires explanation of what changed clinically in three months to support the opposite conclusion in September 2004.
The 2.5 cm leg length measurement requires documentation of measurement technique and explanation for why it differs from both the 2.8 cm clinical and 1.1 cm radiographic measurements in the treating record.
The causation conclusion attributing low back pain to obesity requires reconciliation with documented BMI of 25 and explanation of why facet changes visible in 2003 would produce symptoms beginning in 2002.
The symptom magnification finding requires identification of specific pain drawing features and reconciliation with Pain Disability Index and depression screening results completed simultaneously.
The sitting limitation dismissal requires explanation of how left paraspinal tenderness and positive Patrick’s test fail to constitute objective findings supporting sitting restrictions.
The medication inappropriateness conclusion requires acknowledgment of documented failed conservative measures and explanation of what treatment should have been prescribed given NSAID intolerance and partial Neurontin efficacy.
The IME Physician Examined the Wrong Injury Timeline
The IME report references a December 18, 1985 injury date and examines Mr. Sample on September 18, 2004. The treating records establish identical dates. Yet the IME clinical history section states that by February 2, 2004 the examinee was ambulating with a cane, by mid-March 2004 Dr. Kinko noted essentially normal gait, and by mid-June 2004 x-rays showed healing with release from care. The diagnostic study table lists x-ray results from 6/18/03.
These are not transcription errors. They represent fundamental confusion about whether this examines a 2003/2004 injury or a 1985/1986 recovery. The chronology collapses across an 18-year span.
The 2.5 cm Leg Length Discrepancy Has No Documented Source
The entire permanent impairment rating depends on a finding of 2.5 cm limb length discrepancy measured “from the lateral pelvic rim to the lateral tibial plateau.” The report describes no measurement technique, patient positioning, or examination methodology.
The June 2003 imaging report documents 1.1 cm radiographic femoral shortening measured from greater trochanter to lateral femoral condyle. The June 2004 treating physician note documents 2.8 cm clinical shortening using standard blocks, explicitly distinguishing this from radiographic measurement and noting that clinical measurement accounts for soft tissue and pelvic tilt effects not visible on x-ray.
The 2.5 cm figure matches neither documented measurement. The treating record provides two defendable measurements with documented methodology. The IME provides neither.
The Pain Assessment Contradicts the Work Capacity Analysis
The IME documents current pain at 2/10, average pain at 2/10 over the past month, with a high of 4/10. The examinee reports ability to walk up to two miles and describes pain as minimal and intermittent. The work capacity assessment then concludes the examinee can walk “perhaps 15 minutes per hour.”
No clinical findings support this restriction. Hip range of motion was symmetrically normal except for bilateral limitation in external rotation. There was no pain with hip motion, no tenderness of hip structures, and no thigh atrophy.
The treating record from June 2004 documents one-to-two-mile daily walks, reduced range of motion in multiple planes, tenderness at the hardware site, and pain with resisted abduction—objective findings the IME examination did not reproduce. The restriction appears constructed from complaint severity that does not exist in the IME’s own documented findings.
The Symptom Magnification Conclusion Is Unsupported and Contradicted
The IME states the pain drawing “did reveal findings suggestive of symptom magnification” and references “the degree of symptom magnification present” when discussing low back symptoms. The behavioral observations section explicitly states: “There was no significant pain behavior. Non-physiologic findings were not present.”
The Pain Disability Index score of 13% indicates mild perceived disability. The CES-D score of 10 is not consistent with depressed mood. The examinee sat continuously for 20 minutes, appeared comfortable during the visit, and remained cooperative and attentive. The report documents no Waddell signs and identifies no inconsistencies between observed and reported function.
The symptom magnification conclusion has no foundation in the IME’s own examination and directly contradicts the documented behavioral observations.
The “More Diffuse Low Back Symptoms” Are Dismissed Without Analysis
The IME acknowledges low back symptoms and attributes them to “pre-existent (mild) facet arthropathy, obesity and symptom magnification.”
The treating record from June 2004 documents progressive low back pain over eighteen months, left-sided with radiation into the buttock and posterior thigh, rated 3/10 at rest and 5/10 with activity. Dr. Kinko’s assessment explicitly states this is “most likely compensatory given the prolonged leg length discrepancy and altered gait mechanics” and identifies the facet arthrosis as “a structural substrate for this pain” but notes it does not fully account for symptom severity in the context of gait abnormality. The June 2003 imaging confirms mild facet arthrosis at L4-5 and L5-S1.
The IME examination found mild restriction of lumbar flexion and extension, left paraspinal tenderness L3-S1, and positive Patrick’s test reproducing left SI pain. These are objective findings consistent with compensatory mechanical pain, documented by both the treating physician and the IME’s own examination.
The causation dismissal is based on obesity (the report lists the examinee’s weight at 160 pounds at 5’7″) and symptom magnification that is contradicted elsewhere in the report.
The Medication Appropriateness Critique Ignores Documented Clinical Rationale
The IME concludes that Avinza is “inappropriate given the lack of objective reason for the examinee’s pain complaints and the ineffectiveness of the medication” and that Neurontin use “has been inappropriate given the lack of evidence of neuropathic pain.”
The June 2004 treating note documents that Avinza was initiated in February 2003 after failed trials of celecoxib (GI intolerance related to Crohn’s disease), tramadol (inadequate analgesia), and two courses of physical therapy. The note states the patient “has demonstrated stable use without dose escalation over fourteen months.”
Neurontin was prescribed in August 2003 for “burning, lancinating pain in a distribution consistent with the lateral femoral cutaneous nerve, which is at risk during the lateral surgical approach used in his 1985 ORIF procedure” and produced “approximately 40 percent reduction in this specific pain component per patient report.”
Dr. Kinko explicitly documents objective findings supporting the pain complaints: reduced range of motion in all planes, tenderness at the hardware site, pain with resisted abduction, and abductor weakness with positive Trendelenburg sign.
The appropriateness critique does not acknowledge these documented treatment rationales, prior failed therapies, or the constrained pharmacologic options created by Crohn’s disease.
The MMI Determination Conflicts with the Treating Physician’s Explicit Assessment
The IME states “the examinee has achieved maximum medical improvement.” The June 2004 treating note—the most recent record available to the IME—concludes: “Patient is not currently at maximum medical improvement in my clinical opinion as further treatment trials remain available and have not been exhausted.”
Dr. Kinko documents discussion of hardware removal as a potential intervention if lateral hip pain increases and notes that the patient prefers to defer surgical intervention.
The IME does not address this conflict or explain why the treating orthopedic surgeon’s assessment that MMI has not been reached is incorrect.
The Work Capacity Section Contains Internal Gender Reference Inconsistency
The work capacity analysis states the examinee “should avoid driving a motor vehicle or operating machinery due to her multiple sedating medications.” The examinee is male throughout the report.
This suggests the work capacity section was imported from another report without adequate review. The 15-minute-per-hour walking restriction, unsupported by the examination findings, becomes more difficult to defend when the restriction language itself contains evidence of template reuse.
Clarification Questions
Record Clarification
The IME states no records prior to December 18, 1985 or subsequent to June 14, 2004 were available for review. The examination occurred September 18, 2004, three months after Dr. Kinko’s final documented visit. No records are present for the interval between June 14, 2004 and the September 2004 IME examination date. If the plaintiff sought or received any treatment during this three-month window, those records were not provided and are not addressed in the IME analysis. This gap is relevant to the MMI determination and the characterization of symptom severity at the time of examination.
Dr. Boucher concludes Mr. Sample has reached maximum medical improvement and requires no further treatment while simultaneously documenting findings that contradict both positions. The June 2004 treating record shows declining hip range of motion compared to 2003, progressive leg length discrepancy requiring adjustment of the heel lift prescription, new-onset compensatory low back pain, and a documented mild depression score that Dr. Kinko explicitly identifies as untreated and requiring behavioral health referral. Dr. Boucher examined Mr. Sample three months later and found the same decreased range of motion, the same leg length discrepancy, and the same depression screening score. He then declared MMI without addressing why declining function and untreated depression support a conclusion that no further recovery can be anticipated.
Dr. Kinko’s June 2004 note explicitly states that Mr. Sample “is not currently at maximum medical improvement in my clinical opinion as further treatment trials remain available and have not been exhausted.” Dr. Boucher does not acknowledge this statement. He does not explain why the treating surgeon’s position is incorrect. He does not identify which treatment trials have been exhausted or why remaining options lack reasonable medical probability of benefit.
The causation analysis creates a second structural vulnerability. Dr. Boucher concludes that Mr. Sample’s low back symptoms are “more likely than not” due to preexisting facet arthropathy, obesity, and symptom magnification rather than the documented leg length discrepancy and altered gait mechanics. The 2003 imaging report identifies mild facet arthrosis at L4-5 and L5-S1, but Dr. Kinko’s June 2004 note describes this as a structural substrate that does not fully account for symptom severity in the context of documented gait abnormality. Dr. Boucher does not explain why mild facet changes visible on imaging in 2003 would produce new-onset symptoms beginning in late 2002 or early 2003. He does not address the temporal relationship between progressive leg length discrepancy and symptom onset.
The submission does not support the reference to obesity. Dr. Boucher documents Mr. Sample’s height as 5 feet 7 inches and weight as 160 pounds, producing a BMI of approximately 25. This falls at the threshold of the overweight category and does not constitute obesity under standard clinical definitions. When questioned, this becomes difficult to defend without either retracting the obesity reference or explaining why a BMI of 25 materially contributes to symptom severity in a manner that outweighs documented biomechanical factors.
The symptom magnification finding depends entirely on the pain drawing, which Dr. Boucher describes as revealing “findings suggestive of symptom magnification.” He does not describe what those findings are. He does not explain the interpretive criteria applied. He does not reconcile the pain drawing interpretation with the Pain Disability Index score of 13 percent, which he characterizes as indicating “mild perceived disability,” or with the depression screening score of 10, which he states is “not consistent with a depressed mood.”
Mr. Sample completed all three instruments during the same examination. Dr. Boucher uses the pain drawing result to support a causation conclusion that attributes low back symptoms to magnification but does not explain why the other two instruments completed simultaneously do not support that interpretation.
The work capacity analysis demonstrates the same pattern. Dr. Boucher states that Mr. Sample “assumes that he is unable to sit, but I can find no objective reason why that should be the case.” The submission does not establish that Mr. Sample reported inability to sit. Dr. Kinko’s June 2004 note documents low back pain worsening with “prolonged sitting or activity” and rated 5/10 under those conditions. Dr. Boucher’s own physical examination findings include “left paraspinal tenderness L3-S1 level” and a positive Patrick’s test reproducing left SI region pain. These are objective findings that support pain with prolonged sitting.
The statement that there is no objective reason for sitting limitations directly contradicts Dr. Boucher’s own documented examination findings.
The impairment rating depends on application of AMA Guides Table 17-4 for leg length discrepancy. Dr. Boucher measures 2.5 cm shortening from the lateral pelvic rim to the lateral tibial plateau and assigns 7 percent lower extremity impairment converting to 3 percent whole person. Dr. Kinko’s June 2004 note documents clinical leg length discrepancy of 2.8 cm using the block method without the heel lift in place. The 2003 imaging report documents radiographic femoral shortening of 1.1 cm but explicitly states this measurement represents femoral length only and does not account for soft tissue changes or functional pelvic tilt. Dr. Kinko states that clinical measurement is “the functionally relevant figure for prescription purposes.”
Dr. Boucher does not explain why he used a 2.5 cm measurement rather than the 2.8 cm clinical measurement documented by the treating surgeon three months prior to the IME. The discrepancy between the two measurements creates exposure when the impairment rating is challenged, particularly if Dr. Kinko testifies that the 2.8 cm figure represents the functionally accurate measurement.
The conclusion that Avinza and Neurontin are inappropriate depends on the assertion that there is no objective reason for Mr. Sample’s pain complaints and that the medications are ineffective. Dr. Kinko’s June 2004 note documents objective findings including decreased range of motion in all planes, tenderness over the lateral hip hardware site, pain with resisted abduction, positive Trendelenburg sign indicating abductor weakness, paraspinal tenderness, and positive Patrick’s test. Dr. Kinko explicitly states that pain “is consistent with documented structural findings and is not disproportionate to objective findings.”
Dr. Kinko also documents that Neurontin produced approximately 40 percent reduction in neuropathic pain and that Avinza was initiated after failed trials of celecoxib, tramadol, and two separate courses of physical therapy. Dr. Boucher does not explain why these documented medication trials and partial symptom relief support a conclusion of inappropriateness. He does not address Dr. Kinko’s clinical rationale. He does not explain what treatment Dr. Kinko should have prescribed instead given the documented NSAID intolerance related to Crohn’s disease.
The reasoning structure depends throughout on the assumption that symptom magnification explains findings that conflict with Dr. Boucher’s conclusions. The pain drawing supports magnification. The low back symptoms reflect magnification. The sitting limitations reflect assumed inability rather than objective findings.
But the documented progressive structural changes on serial imaging, the declining range of motion between 2003 and 2004, the measured leg length discrepancy increasing from 8 mm to 11 mm radiographically and 2.8 cm clinically, and the positive physical examination findings documented by both physicians do not support an interpretation that symptom presentation exceeds objective findings.
The magnification framework becomes difficult to maintain once counsel isolates the documented progression of structural pathology and identifies the internal contradictions across the pain inventories. The IME’s conclusions depend on that framework holding under pressure. Once it becomes unstable, the causation analysis, work capacity conclusions, and appropriateness-of-care opinions lose their supporting structure.
The IME that confuses correlation with mechanism.
The report establishes that symptom magnification exists (based on the pain drawing) and that low back pain is present, then treats those two facts as causally connected without demonstrating the link. Page 7: “The examinee’s more diffuse low back symptoms are of uncertain origin, given the degree of symptom magnification present. More likely than not, these symptoms are due to pre-existent (mild) facet arthropathy, obesity and symptom magnification.”
The physician observes both magnification and low back pain in the same file and uses the presence of the first to explain the second. The mechanism remains unspecified: why would magnification cause pain rather than simply exaggerate its reporting?
Without the magnification finding doing causal work, the low back pain becomes a legitimate sequela of documented leg length discrepancy and altered gait mechanics—exactly as Dr. Kinko explains in June 2004.
The IME that uses symptom magnification as a load-bearing wall.
The entire causation conclusion regarding low back pain depends on the symptom magnification finding being valid and doing causal work. But that finding rests entirely on a single pain drawing completed during an adversarial examination.
The report states the drawing “did reveal findings suggestive of symptom magnification” but never explains what those findings were, what criteria were applied, or how the drawing was interpreted. No Waddell signs appear in the documentation. No behavioral observations support magnification. The report explicitly states “there was no significant pain behavior” and “non-physiologic findings were not present.”
The magnification conclusion contradicts the physician’s own observations during examination and is asserted without methodology. Remove that finding and the low back pain conclusion reverts to what Dr. Kinko says it is: compensatory pain from documented leg length discrepancy and gait alteration with structural substrate in documented facet arthrosis.
The IME that uses the claimant’s own treating physician against them.
The report cites Dr. Kinko’s March 2004 note stating “essentially normal gait with painless hip motion” to support minimal ongoing limitation. But it carefully avoids Dr. Kinko’s June 2004 note, which documents declining range of motion, tenderness at the hardware site, pain with resisted abduction, positive Trendelenburg sign, antalgic gait, and clinical leg length discrepancy of 2.8 cm.
Dr. Boucher examined the claimant in September 2004—three months after Dr. Kinko’s most recent assessment. The report references only the older, more favorable March note. The treating physician’s voice is used selectively to create the appearance of agreement where none exists.
The IME that dismisses without engaging.
The report identifies the strongest supporting evidence and dismisses it in conclusory statements. Dr. Kinko documented clinical rationale for Avinza and Neurontin. Imaging shows progressive impaction deformity. The measured leg length discrepancy increased from 8mm to 11mm radiographically and 2.8 cm clinically. Hip range of motion declined on serial examination.
The “Appropriateness of Care” section concludes Avinza is “inappropriate given the lack of objective reason for the examinee’s pain complaints” when the treating record documents hardware in situ, progressive impaction, heterotopic ossification, declining range of motion, tenderness on palpation, and pain with resisted movement.
Neurontin is dismissed as inappropriate “given the lack of evidence of neuropathic pain” when Dr. Kinko’s notes document neuropathic-quality pain in the lateral femoral cutaneous nerve distribution—a recognized risk of the lateral surgical approach used in 1985. The strength of Dr. Kinko’s evidence is visible in how quickly the report moves past it.
The IME that treats the claimant’s self-report as selectively credible.
The report accepts the claimant’s self-report that he can walk two miles daily and uses that to support minimal limitation. But when he reports pain worsening with prolonged walking or lying on the left side, that self-report is characterized as inconsistent with objective findings.
The Pain Disability Index shows 40% perceived disability in sexual activity—the highest category endorsed—but the report does not question or explore that finding. When self-report supports the defense conclusion, Dr. Boucher accepts it. When it doesn’t, he either ignores it or implicitly characterizes it as magnification.
The IME’s structural defense depends almost entirely on the symptom magnification finding, which is the weakest element in the report. The magnification conclusion contradicts the physician’s own behavioral observations (“no significant pain behavior,” “non-physiologic findings were not present”) and rests on an unexplained pain drawing interpretation.
Once challenged, the low back pain conclusion loses its foundation. The defense cannot resolve the contradiction between “no pain behavior” during examination and “symptom magnification” in the conclusion without producing the pain drawing itself and defending the interpretation criteria. They will not want that drawing in front of a jury or mediator.
The report’s second structural weakness is the selective use of treating records. Dr. Boucher cites the March 2004 note but ignores the June 2004 note despite conducting his examination three months later. The June note documents objective decline and provides detailed clinical rationale for medication management.
The IME does not address that rationale. It simply declares the medications inappropriate without engaging Dr. Kinko’s reasoning. That avoidance is visible and cannot be defended without conceding that Dr. Kinko’s clinical judgment is more thoroughly documented than the IME’s. The treating opinion is based on serial examinations over nineteen years, documented progression on imaging, and measured functional decline. The IME is based on one examination and selectively cited records.
Deposition Targets:
Dr. Boucher: Pain Drawing Interpretation
Require him to produce the actual pain drawing and explain specifically what findings indicated symptom magnification. Establish what diagnostic criteria he applied, whether he used any validated scoring system (e.g., Ransford criteria), and how the findings were reconciled with his own statement that “there was no significant pain behavior” and “non-physiologic findings were not present.”
If he cannot produce the drawing or defend the interpretation methodology, the magnification finding collapses. If the interpretation is subjective rather than criteria-based, the finding becomes opinion without foundation.
Dr. Boucher: Treating Record Review
Establish whether he reviewed Dr. Kinko’s June 14, 2004 note—the most recent treating assessment before the IME. If he did, ask why he didn’t cite it or address the documented decline in hip range of motion, positive Trendelenburg sign, increased leg length discrepancy, or clinical rationale for Avinza and Neurontin.
If he didn’t review it, establish that he rendered his opinion on appropriateness of care without knowledge of the treating physician’s most recent reasoning. Either answer undermines the opinion.
Dr. Boucher: Leg Length Measurement
Establish why he measured leg length as 2.5 cm deficit but doesn’t address Dr. Kinko’s clinical measurement of 2.8 cm. Ask why he prescribed a 1.5 cm heel lift when his own measurement shows 2.5 cm shortening and the treating physician prescribed 2.0 cm based on functional assessment.
Establish whether he understands the difference between radiographic femoral length and clinical functional leg length, and why he relies on the former when the latter is more relevant for functional capacity and gait mechanics.
Dr. Boucher: Low Back Pain Causation
Establish the mechanism by which “symptom magnification” causes low back pain rather than simply exaggerating its reporting. Ask whether he considered that documented leg length discrepancy of 2.5 to 2.8 cm, documented gait alteration, positive Trendelenburg sign, and documented facet arthrosis could explain low back pain without requiring magnification as a causal factor.
Require him to explain why Dr. Kinko’s explanation—compensatory pain from prolonged gait abnormality and leg length inequality—is less medically probable than symptom magnification when the structural findings support Dr. Kinko’s reasoning.
Dr. Boucher: Appropriateness of Care
Establish what alternative treatment he would recommend for chronic pain in a patient with Crohn’s disease (which limits NSAID use), failed trials of celecoxib and tramadol, documented hardware in situ, progressive impaction deformity, and declining range of motion.
Ask whether he reviewed Dr. Kinko’s documented rationale showing that Avinza was initiated only after non-opioid trials failed and that Neurontin was prescribed for neuropathic-quality pain in a nerve distribution at risk from the 1985 surgical approach. Establish whether he’s aware that lateral femoral cutaneous nerve injury is a recognized complication of lateral hip approaches and whether he considered that diagnosis before concluding Neurontin was inappropriate.
The defense will argue minimal objective findings, two-mile daily walking capacity, 1986 MMI, and symptom magnification for secondary gain. They’ll rely on the sedentary work capacity opinion and the “inappropriate care” finding to argue ongoing treatment isn’t compensable. They’ll emphasize the 3% whole person impairment rating and characterize ongoing complaints as disproportionate to a healed 1985 fracture.
They will not want to litigate the symptom magnification finding or the selective use of treating records.
Plaintiff’s position: the treating record documents progressive structural deterioration. Impaction deformity increased from 6mm post-op to 11mm in 2003. Leg length discrepancy worsened from 8mm to 11mm radiographically and 2.8 cm clinically. Ongoing hardware-related pain, compensatory low back pain with documented structural substrate in facet arthrosis, and declining functional capacity documented by the treating surgeon over nineteen years of serial examinations.
Dr. Kinko stated in June 2004 that the claimant “is not currently at maximum medical improvement in my clinical opinion as further treatment trials remain available and have not been exhausted.” The IME ignored that opinion entirely.
The medications aren’t inappropriate. Dr. Kinko prescribed them after documented failures of non-opioid alternatives in a patient with GI contraindications to NSAIDs. The clinical rationale is documented. The symptom magnification finding is unsupported, contradicts the IME’s own behavioral observations, and creates significant analytical vulnerability.
The defense cannot defend this IME without producing the pain drawing and explaining why they ignored Dr. Kinko’s most recent note.
This IME creates multiple structural vulnerabilities under deposition. The symptom magnification finding contradicts the report’s own observations and has no demonstrated methodology. The low back causation conclusion depends entirely on that unsupported finding. The selective use of treating records is visible and indefensible—Dr. Boucher cited the March 2004 note and ignored the June 2004 note conducted three months before his examination.
Push hard on the pain drawing interpretation, the ignored treating records, and the inappropriateness of care opinion rendered without engaging Dr. Kinko’s documented clinical reasoning. The defense will resist deposition because the contradictions cannot be explained.
Settlement positioning should emphasize that the treating physician—who examined this claimant serially for nineteen years, documented progressive structural deterioration on imaging, and provided detailed clinical rationale for every treatment decision—directly contradicts the IME’s core conclusions. The claimant has documented hardware in situ, progressive impaction, worsening leg length discrepancy, declining range of motion, and compensatory low back pain with structural substrate on imaging.
This is not magnification. This is documented progression. The defense knows it.
Settlement value is significantly higher than the 3% impairment rating suggests because the IME creates serious analytical vulnerabilities and the treating record is comprehensive and well-documented. If they refuse meaningful movement in mediation, depose Boucher and expose the weaknesses. The vulnerabilities are not subtle.
This is an independent analytical review of the written materials provided. It does not constitute legal advice, medical opinion, or expert testimony.
This review isolates the unsupported assumptions, weak causation links, and pressure points before they become problems in mediation.
The first review for any new firm is complimentary.
Send the IME you are least comfortable relying on.