by David Bishop –
When reviewing PQME reports, it’s common for practitioners to gloss over the “research” section despite the fact that the respective doctor is relying on said research to come to the conclusion with the respect to causation, nature and extent, and apportionment.
If a PQME/AME does rely on research in order to come to assess the applicant, it is important to review the research and determine if there are any red flags.
The most common red flag in PQME reports is the doctor will list the research with only the “Abstract” section attached to the report. In all likelihood, the PQME used a search engine, such as PubMed, to essentially perform a Google Search of scientific research which fits the doctor’s diagnoses.
If the doctor only lists the “Abstract” portion of the article, it is certainly worth reviewing the article to make sure the study is valid for the particular applicant and the Abstract reflects the findings as supported by evidence in the scientific paper.
Arguably the most important section in a scientific paper is the “Methods and Materials” portion. In the Methods and Materials, the scientists will inform of the test subject’s information (ethnicity, age, pre-existing conditions, whether the study was performed blind or double blind, sample size, etc.). As a rule, the larger the sample size, the more trustworthy the study. However, beware these scientific papers are theories, not laws. As such, most often the authors will make a conclusion based on the data in the scientific article and note that further research is required.
In using scientific studies cited by a PQME, the easiest way to attack the validity of a doctor’s report is 1) the Abstract does not reflect the findings of the study, 2) the demographics of the sample size does not meet those of the applicant, or 3) the sample size is too small.
In practice, the majority of scientific studies which we can attack PQMEs are limited to a condition related to internal medicine. In order for that to be an effective strategy, it is best to depose the doctor rather than request a supplemental report.
Should the attorney only request a supplemental report, it will allow the doctor to actually perform research and/or change his/her opinion with respect to causation. Below are two examples where the PQME changed his mind based on the studies the doctor cited, which incorrectly led to the doctor’s diagnoses:
- Applicant was a peace officer and diagnosed with colon cancer. The mechanism of injury was exposure to carcinogens in gasoline such as benzene. In the PQME report, the doctor cited an Abstract which stated “Carcinogenicity of benzene, toluene, and xylene.” Although peace officers have a presumption that cancer is compensable, the Abstract states “While no direct human evidence is available, there is recent evidence of carcinogenicity of toluene and xylene at high concentrations in experimental animals.” Therefore, there is at least a question as to why the doctor cited the instant study in finding the peace officer’s cancer was related to benzene when the sample size did not include humans. Moreover, in Analysis section of the article, the study cites roughly 99% of cancer from [benzene] leads to a form of leukemia. At the time of deposition, the doctor was surprised to be questioned on studies he relied on in diagnosing the applicant’s cancer. In reviewing the scientific study, the PQME recanted his findings and wished to see the applicant again. Ultimately, the PQME stated there is a presumption the peace officer’s cancer is industrially related; however, he left the matter up to the trier of fact to determine causation due to the overwhelming evidence that benzene leads to a form of leukemia. We went to trial and was able to rebut the presumption based on the doctor’s concession that there is no link between colon cancer and the mechanism of injury.
- In another case where the PQME found the applicant’s diabetes industrial, the doctor cited a study related to sedentary jobs and correlation to Type 2 Diabetes. Again, the doctor cited multiple studies which showed a correlation between sedentary jobs and Type 2 Diabetes. The doctor failed to look at the methods and materials wherein the sample size had preexisting conditions. Therefore, at the time of deposition, the doctor was put on the spot to defend the studies hand-picked by the doctor to support his conclusion the applicant’s Type 2 Diabetes was industrial. When the studies had been dismissed as irrelevant to the applicant, the doctor admitted multiple factors such as aging, obesity, family history, race, age, and lower testosterone leads to Type 2 Diabetes. The applicant, in his mind 50’s, had been diagnosed with obesity, had a family history of Type 2 diabetes, and had low testosterone. In a supplemental report, the doctor changed his opinion, finding the applicant’s industrial injury had not led to Type 2 Diabetes.
In summary, it is easy to skim through a PQME report to determine if the applicant has reached P&S/MMI in order to try and settle the case. However, in cases that are not run-of-the-mill slip and fall orthopedic claims, it is worth spending the extra time to determine if the doctor relied on any scientific studies in coming to a conclusion with respect to causation. While these cases are few and far between, attorneys are capable of saving clients money by using the doctor’s hand-picked studies against the doctor in deposition.
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David Bishop is an associate attorney at Bradford & Barthel’s Fresno office. He graduated from the University of California, Los Angeles, with a Bachelor of Science degree in Molecular, Cell, and Developmental Biology. While at UCLA, David teamed with the prestigious Steve Jacobsen lab, studying methyl binding domain proteins in relation to gene silencing. If you have questions about workers’ compensation defense issues, or the use of “research” in medical-legal reports, please feel free to contact David at 559.442.3602 or at firstname.lastname@example.org.
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