Third-Party Reviewers: Nothing More Than Armchair Quarterbacks

Saturday, October 21, 2006 | 0

Editor's note: The following is an edited letter from the leaders of California Society of Industrial Medicine and Surgery to its members.

On behalf of its members, CSIMS recently wrote to the California Division of Workers' Compensation to describe a disturbing trend that has become widespread over the last few months. The society requested that the DWC provide its guidance and advice in writing via a DWC Newsline communication. While the division contemplates its response, CSIMS must speak out ...

Third Party Reviews Undermine System Integrity

CSIMS members are among the most respected qualified medical evaluators (QMEs) and agreed medical examiners (AMEs) found within the California Workers' Compensation System.

CSIMS members from across the state have spent and will continue to spend countless hours and invested large amounts of money to attend seminars, upgrade skills and office systems to adapt to the use of the American Medical Association Guides, Fifth Edition and to provide the most accurate, well-reasoned impairment ratings possible.

In a development not contemplated by the Legislature or the courts with respect to use of the AMA Guides, AMEs and QMEs throughout the state are having their reports retrospectively reviewed, actually second-guessed, by self-appointed "experts." Claims administrators are having properly prepared medical-legal reports reviewed by third parties who are not QMEs, who are not necessarily licensed to practice medicine in California, who do not review medical records firsthand and, most importantly, do not examine the injured worker.

The stated purpose of these reviews is to obtain more "accurate" ratings and, in the words of one such expert, "as constructive feedback." While these are noble purposes, the reviews are actually being used to negotiate lower ratings and goad providers into rebutting the third party review, thus admitting the "expert's review" into evidence when it would otherwise be inadmissible.

It is our opinion that if an evaluating physician prepares a supplemental report that discusses the contents of an outside third party review, the evaluating physician might inadvertently place that third party opinion "on the record." In addition, if the "expert's" review has not been served on the applicant, the evaluator may also be guilty of ex parte communication.

We see this tactic as deceptive and subversive of the purpose of the California workers' compensation system and the Labor Code Section 4062 process. Payers deliberately undermine the QME/AME process prescribed by Senate Bill 899 when they obtain inadmissible written report reviews, no matter how "expert" in nature, from individuals who have no first hand knowledge of the case and have not examined the injured worker and then proceed to request the evaluating physician's written rebuttal. The tactic becomes even more problematic with unrepresented workers.

This practice is not actually meant to be educational or of any benefit to the injured worker. This practice enriches the third party "experts" and provides inadmissible, heavy-handed leverage to negotiate lower permanent disability awards in an atmosphere already overwrought with suspicion, ill will and contentiousness.

We realize that carriers can seek whatever input they may believe appropriate to make their case and spend what they believe necessary in the endeavor. However, taking the next step of luring the independent evaluating physician into a written response, thereby admitting into evidence a report or its findings that otherwise are inadmissible, should be stopped.

Not to be outdone, some applicant attorneys have been known to take AME reports back to the treating physician when the AME report was not to their satisfaction, obtain the treating physician's opinion of the AME report and then approach the AME for a written response.

What To Do

If you are confronted with a third party "expert" review of your work and requested to respond in any fashion to its contents, remember that you have no obligation under the law to do so. Labor Code 4660 requires that the evaluating physician take into account the nature of the injury, the injured worker's occupation and age at the time, with consideration to diminished future earning capacity. The "nature of the injury" is defined to incorporate the AMA Guides, 5th Edition. The Guides themselves do not claim to be evidence based, but rather consensus estimates and allow the evaluating physician to use his/her discretion when describing impairment.[1] Therefore, while it is certainly possible to learn from a valid critique, one must be very clear of the implications of such a response. Lessons can be learned without responding to the claims administrator's request.

We do not advocate that the evaluating physician totally ignore such requests. CSIMS suggests a brief letter to all parties to the effect, "I received a letter from _________ dated __________. It is not my role as an AME/QME in this matter to review, consider and comment on opinions from outside sources, especially those who have not examined the patient. -- Very Truly Yours ..."

If one chooses to rebut or otherwise respond to the review in writing, the contents of the third-party report may become admissible. Without a written response, the review remains simply that -- a review. Without the evaluator's written response, it is left up to the attorneys and the court to decide the influence, if any, of its contents. If you write about it, there is a greater likelihood of impermissible hearsay being introduced into the process.

The effect of the reviewer's finding on your patient's permanent disability determination, the accuracy of your report and your professional reputation are prime concerns. As mentioned earlier, no one would advocate or condone hiding from either a valid critique or the importance of more accurate impairment determinations. CSIMS and other professional provider associations have long stood for the tenets of thorough knowledge, accuracy, sound reasoning and substantial medical evidence as the basis for forensic reports. Therefore, to the extent that one's initial determinations should rightfully be amended, the appropriate action is to do so.

However, the Legislature, in passing SB 899, clearly intended to stop "dueling doctor" reports. Therefore, when an appropriate change in your findings is called for, within the supplemental that corrects the record, the QME or AME need not mention or otherwise refer to outside reviews as the reason or justification for a revised impairment rating. Instead, the QME or AME may attribute the new findings to his/her own reconsideration of the initial findings and report.

Everyone participating in the California workers' compensation system must have his/her eyes wide open to the fact that by obtaining such third party reviews from so-called "experts," claims administrators and attorneys are attempting to enter into evidence old-fashioned defense and applicant evaluations that are not otherwise admissible. There is no other conclusion to be reached.

Therefore, to give blind credence to this practice by automatically responding in writing allows the parties to obtain additional evaluations not intended by the Legislature under SB 899 and not allowed under the Labor Code.

If third party reviewers want to provide the industry with the benefit of their expertise and accurate evaluations, let them fully participate in the workers' compensation system here in California. Let them become QMEs. Those that currently operate outside of California should establish offices in the state, become employers, be exposed to the risks of participation in the system and examine injured workers, firsthand, to provide medical-legal reports rather than engaging in the armchair quarterbacking of valid QME and AME reports at a substantial additional cost to employers.

Footnotes:

(1) AMA Guides, 5th Edition, Chapter 1, Philosophy, Purpose and Appropriate Use of the Guides: Section 1.2 pages 2, 4 and 5; Section 1.5 pages 10 and 11; Section 1.7, page 12; Section 1.8, page 13; Chapter 2, Practical Application of the Guides: Section 2.5 (c), page 19; Section 2.5 (g), page 20. -------------------------------

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