Docs, Please Hold the Retrospectoscope

Tuesday, June 17, 2008 | 0

By Julius Young

Doc, please hold that retrospectoscope.

One thing I like about being in doctor's offices to take depositions is seeing some of the tools of the trade. Modern medical technology is amazing.

If you'd like to see some really strange futuristic tools of the trade (satirical, actually), check out this site:
http://www.freakingnews.com/Medical-Instruments-Pictures--500.asp

In the past there have been a number of medical devices that were either ineffective or fraudulent. There's actually a Museum of Questionable Medical Devices, now located at the Science Museum of Minnesota:
http://www.museumofquackery.com/devices/devindx.htm

Back to that retrospectoscope.

The retrospectoscope isn't like the Toftness Radiation detector, the MacGregor Rejuvenator, the Psychograph, the Micro-Dynameter, or the Relaxacisor. Actually, it's not a device.

It's more like a habit. A habit some QMES and AMES have when they write reports on injured workers.

In the typical retrospectoscope scenario, the QME or AME will be examining the worker long after the injury. The worker may still be off work on temporary disability, certified for TTD by his or her treating doctor. Or the worker may be back to work, having drawn TTD until the return to work date.

In this scenario, the QME or AME, seeing the worker downstream, undertakes to assign an earlier upstream P&S date or an earlier date at which TD should have stopped and the worker been released to work.

Using the retrospectoscope, the QME or AME may try to assign the retrospective P&S date based on what is felt to be a reasonable recuperation time for that particular type of injury. Or assign a retrospective date on some other factors, including the QME/AME's retrospective concerns about the patient's cooperation or doubts about the treating doctor's clinical judgement in certifying the worker as TTD during the period in question.

Never mind that the treating doctor kept the worker off work on TTD, sometimes even over the worker's objection. Never mind that the employer did not provide modified work consistent with work restrictions during the period. Never mind that the QME or AME did not see the worker during the period in question.

Often the QME or AME will offer these retrospective assessments even though the parties have not requested it. The QME/AME may just assume that the parties want such an assessment. Or the QME/AME may be inclined to micromanage the case.

The result: report comes out. Adjuster sends applicant a letter which says in essence: "you owe us money. Send us your check, you have been overpaid. You are P&S and we owe you nothing due to the TD overpayment".

Is this legal? No, according to Mark Borges vs. WCAB (Quality Terminals):
http://www.grayandprouty.com/articles/Borges v.WCAB.pdf

In Borges, the Court of Appeal rejected a WCAB finding that a worker was not entitled to TD benefits during a period when his treating doctor certified his TTD. The WCAB had based its finding on a defense QME report releasing the applicant to work. But there was a problem. The QME report was not signed and transmitted to the parties until months later. The court rejected an attempt to bar applicant from TD benefits based on a return to work assessment that was never transmitted to the worker.

Might there be times where the parties want the QME or AME to address retrospective TD issues? Sure. Perhaps there were earlier dueling QMEs and the parties actually want the AME to resolve a TD/P&S date issue.
And in some cases where there are disputes about separate periods of cumulative trauma, the parties may ask for P&S dates.

But docs..hold the retrospectroscope unless you're asked to use it.

<i>Julius Young is an attorney in Oakland who focuses on workers' compensation and Social Security disability claims.</i>