A Guaranteed Path to Success - When Not to Use an AME

Saturday, May 6, 2006 | 0

By York McGavin

In my experience, an Agreed Medical Evaluator (AME), chosen by both the Applicant Attorney (AA) as well as the Defense Attorney (DA) to resolve a dispute, will usually split-the-baby-down-the-middle in a Solomonic attempt to please both parties. The foundational basis for the AMEs desire to please both parties is to avoid displeasing either party, so that the AME will continue to be chosen in the future to resolve disputes.

Thus, generally, I perceive an unstated underlying agenda on the part of the AME to garner repeat referrals in the future by splitting-the-baby-down-the-middle in such a fashion that neither party finds too offensive.

The practical effects of splitting-the-baby-down-the-middle by the AME is that usually the amount of permanent disability (PD) found, will not be as much as was found by the PTP. Another aspect of splitting-the-baby-down-the-middle is that the AME will, if possible, usually apportion some amount of PD to "any other non-industrial factors." (Escobedo)

As a result, there will be enough PD to satisfy the AA, but not as much as was found by the PTP, which will please the DA. In regards to apportionment, the AME will usually find some, which will please the DA, but not so much as to offend the AA to the point where the AA will never chose this AME again to resolve future disputes for different injured workers (IWs).

By splitting-the-baby-down-the-middle, the AME hopes to ensure continued referrals to resolve disputes, albeit to the detriment of the IW. Relying upon this premise, the following suggestions are made to ensure that the IW obtains the maximum benefit from the dispute resolution process.

THE UNREPRESENTED IW SHOULD TRIGGER THE PQME PROCESS PRIOR TO OBTAINING REPRESENTATION AND INSIST THE AA NOT AGREE TO HAVE FUTURE DISPUTES RESOLVED BY AN AME

As a result of the changes brought about by SB 899, the dispute resolution process has changed dramatically for an IW who sustains injury on or after 1/1/05. No longer can the defendant have the IW be evaluated by the 'go-to' QME chosen by the DA known as Dr. Washout.

In regards to an unrepresented IW, Labor Code 4062.1(e) states: "If an employee has received a comprehensive medical-legal evaluation under this section, and he or she later becomes represented by an attorney, he or she shall not be entitled to an additional evaluation."(underline emphasis added)

In regards to a represented IW, Labor Code 4062.2(e) states: "If an employee has received a comprehensive medical-legal evaluation under this section, and he or she later ceases to be represented, he or she shall not be entitled to an additional evaluation." (underline emphasis added)

I interpret the relevant language, from each above aforementioned Labor Code (LC), as meaning that once a comprehensive medical-legal evaluation has been obtained from a Panel Qualified Medical Evaluator (PQME), the IW is not entitled to select a different QME to resolve future disputes.

The only exception I see is if the dispute resolution process is triggered for the first time when the IW is represented, and the dispute is resolved by an AME. If the IW later dismisses counsel and proceeds in pro per, the IW cannot be forced to return to the AME to resolve future disputes once the IW is unrepresented (See LC 4062.1(a).), unless there is a dispute over a petition to reopen. (See Simi, fn 7.)

Accordingly, to gain the advantage in our adversarial system, the unrepresented IW should initially trigger the PQME process if there is a dispute to be resolved. If the unrepresented IW is guided/coached by an astute Information and Assistance Officer, or the IW's Primary Treating Physician (PTP), the wise unrepresented IW will take the following steps:

1. Upon receipt of a denial or modification from utilization review (UR) in response to a request for authorization for a proposed course of treatment issued by the PTP, the unrepresented IW should timely (20 days) trigger the PQME process per LC 4062.1.

2. The IW should quickly consult with his or her PTP to determine the best specialty to choose to resolve the dispute. If the industrial injury is musculoskeletal, as is the case with the vast majority of industrial injuries, I would suggest choosing chiropractic as the specialty of choice. If there are multiple body parts claimed as being injured industrially (e.g. psyche or internal), it is the chiropractic PQME who gets to pick which specific specialist the IW is referred to for a consult necessary to resolve disputes about those areas outside the expertise and scope of the chiropractor.

3. Upon the IWs receipt from the Medical Unit of the panel list, containing the names of the randomly chosen three QME physicians, the unrepresented IW should immediately consult with the IW's PTP to learn about the inclination of each of the chosen three. The PTP, who has had experiences with, or knows the history of, each of the chosen three should inform the IW of which of the QMEs are defense oriented and which are applicant oriented. In short, which ones are Dr. Washout and which ones are Dr. IW Friendly.

4. The IW should be informed by the PTP that the IW only has ten (10) days from the date the panel list was issued by the Medical Unit to pick one, make an appointment, and notify the Claims Administrator or Claims Adjuster (CA) in writing of the name of the QME chosen to resolve the dispute, as well as the date and time of the appointment. The IW should be informed that if the IW fails to pick one, and timely notify the CA of the name of the QME, as well as the date and time of the appointment, that the CA can pick any one of the QMEs from the randomly selected three whose name appears on the panel list.

5. The IW and the PTP should now work closely, hand-in-hand, in gathering together the necessary medical reports to be provided the PQME chosen by the IW, photocopying the medical records, and timely furnishing a listing of these medical reports to the CA. By timely, this list of medical reports should be exchanged forty (40) days prior to the date of the PQME evaluation. (See LC 4062.3(b).) If any non-medical documentation is proposed to be provided the PQME by the CA (e.g. sub-rosa videos, depositions, or witness statements), the IW is to object to provision of the non-medical documentation within ten (10) days. (See LC 4062.3(b).) The PTP should then assist the IW in providing the PQME with the medical records no later than twenty (20) days prior to the evaluation. (See LC 4062.3(e).) The PTP should also assist the IW in providing the PQME with any "evidence based medical treatment guidelines generally recognized by the national medical community and that are scientifically based" (EBM)(See LC 4604.5(e).) that support the proposed course of treatment that UR denied. This is allowed by LC 4062.3(h).

6. After the evaluation is completed, and the PQME has issued his or her report, the IW can now retain an AA, with the clear understanding that the AA will not ever agree to have any future disputes resolved by an AME. If the AA is unwilling to represent the IW with this condition, the IW should seek a different AA.

Being as the IW has already had a dispute resolved by the PQME, this PQME is now the QME for the life of the claim (See LC 4062.3(j).), who shall resolve any future disputes. This PQME does not need to split-the-baby-down-the-middle in a Solomonic attempt to please both parties in the hopes of garnering future referrals as an AME.

By insisting the AA will never agree to an AME to resolve any future disputes, and instead, insisting that the AA will only return to this PQME to resolve any future disputes, the result will be a guaranteed path to success for the IW with the best possible outcome in regards to PD, apportionment, or UR disputes in the future.

By York McGavin. York can be contacted at ymcgavin@socal.rr.com

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