Don Barthel recently announced that B&B’s Rating Services “has literally identified tens of millions of dollars in savings for our clients.” Per Don, “PTPs and medical-legal examiners in California continue to misapply the AMA Guides. Whether this represents simple mistakes is not always clear, but the result is. About eight out of ten of the reports we review overstate the true permanent disability value.”
What is the largest saving identified in a single case? “We’ve seen reports that literally rated 100 percent. In one case, after a full analysis was performed, we were able to demonstrate that, per the AMA Guides, only 12 percent [PD] was justified. That’s over a $1,500,000 swing!”
Honesty is the Best Policy?
The rating service recently compiled and analyzed all reports assigned over approximately sixteen months. The resulting chart below demonstrates the dramatic results. Explained Phil Billman, B&B’s Rating and AMA Guides expert, “If a medical report–which is represented by a dot on the chart–falls on the diagonal line, this means the doctor’s analysis was correct. It doesn’t happen often. If, however, the dot falls below the diagonal line, this means we were able to demonstrate the report overstated that true level of impairment and PD. That’s typically the case.”
Phil Billman is also proud of the dots above the diagonal. “These dots represent the very limited number of cases where the doctor’s report actually understates the level of impairment and PD per the AMA Guides.”
If the B&B Rating Service has established its reputation by demonstrating–time and again–that doctor reports are overstating the true PD value, why is Mr. Billman gratified by the occasional B&B analysis that identifies greater PD liability? “It’s simple. We maintain a reputation as an honest, neutral third party. If the AMA Guides requires that the report rate is higher or lower than the doctor has indicated, that’s what we report. This way everyone–the adjusters, defense attorneys, applicants attorneys, DEU and judges–know they can rely on our honesty.”
How do clients respond when they learn that they owe more, rather than less than was expected? “The clients we work with are professionals who understand their jobs. They want the applicant to get exactly what is owed: nothing less and nothing more. I think they appreciate that they can trust us to provide an accurate, trustworthy answer,” reflects Phil.
Haven’t I Seen That Argument Before?
Phil states that he “sees patterns” in doctors’ reporting. “We have developed a valuable storage bank of information on the doctors whose work we’ve analyzed. If, for example, I’m working on a report by Dr. S******* 1, I can review the dozen or more prior reports by Dr. S******* that we’ve previously analyzed. In this way, we can quickly pick-out the doctor’s patterns of mistakes, misreading of the AMA Guides, etc. This dossier has proven highly valuable, both in terms of critiquing reports and in terms of recommending to clients which doctors to use and, more importantly, which doctors to avoid.”
Can a B&B Analysis Really Help?
“Of course,” says Phil Billman, “consider the evidence. Our clients regularly report success in getting corrected supplemental reports and cross-examining the doctors. They use our analyses to draft a request for a supplemental or prepare for the cross-examination. In fact, defense firms throughout California regularly use our services to assist their attorneys to prepare for a doctor’s deposition.”
Chuckling, Phil Billman recommends considering the anecdotal evidence as well. “The California Society of Industrial Medicine & Surgery, representing California doctors, sent a letter to the Division of Workers’ Compensation asking how they [the doctors] should respond to reviewers such as B&B’s Rating & File Consultation services. The DWC wasn’t terribly sympathetic. In fact, the DWC said this was a perfectly appropriate defense strategy and that the doctors should be required to correct reports that we’ve demonstrated are faulty.” 2
Have the Doctors Gotten Better?
California’s workers’ compensation doctors have been applying the AMA Guides since January 2005. With well over three years’ experience, is their work getting better? “No!” is the emphatic answer from Don Barthel. “However, they are getting trickier in their efforts to increase PD. Add-ons such as skin disorders and sleep arousal 3 are increasingly found in reports generated throughout the state. Happily, we know exactly how to combat these efforts via proper application of the AMA Guides.”
Congratulations B&B’s Rating & Consultation Services! No wonder the clients are singing your praises!
Mark S. Fletcher is Bradford & Barthel’s Managing Attorney.
1 Name changed to protect the guilty.
2 Susan Gard, DWC spokesperson, reportedly answered: “The simple answer is we don’t think we have authority to prohibit the defense strategy. If a secondary evaluation shows problems in an [AME’s] or [QME’s] report, that’s something they should correct. If the purpose is to get an inaccurate report corrected, they (the defense) should do that. [I]t’s the right of the insurers to look for evidence that strengthens their case…” [Source: Workcompcentral “Reviews of Med-Legal Reports Have Docs Wary” (10/19/06).]
3 For a detailed discussion on defending against arousal and sleep disorder claims, see “Keep CAAA Out of the Bedroom,” B&B BLOG, March/April 2006, Vol. 2, No. 2, and “Epilogue: Keep CAAA Out of the Bedroom,” B&B BLOG, May/June 2006, Vol. 2 No. 3]
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