Huddle in, here’s a secret: rating permanent disability is easy…except when it isn’t. Converting a doctor’s linguistic expression into a precise mathematical value depends heavily on whether the doctor has demonstrated proper use of the AMA Guides.
Omissions of critical information, use of inappropriate rating criteria, gaps in logic, guessing in place of reasoning, bad arithmetic, phantasmic rationales for Almaraz/Guzman or Kite/Vigil assertions, and simple typos can generate disagreement between two readers as to the “true” value of an evaluated condition. We universally agree on what the value of “10” is, but we may strongly disagree on whether a doctor’s arrival at that number is supported, or merely conclusory.
When faced with a “difficult report”, you might turn to B&B’s AMA Ratings Division, the DEU, or some other rating source for clarity. Ideally, the resulting analysis provides you and your opponent with a value that helps to inform a reasonable settlement… end of discovery, settlement documents signed, award issued, file closed, cue the outro music, roll the credits!
But what if that doesn’t happen? When the number seems too high or too low, or the rater tells you “This can’t be rated, because…” What next?
In the formative years of my workers compensation career, as a small AA firm’s designated PD rater and hearing representative, I’d practically sprint to the attorney’s office upon discovering some “fatal flaw” in a QME’s report, anticipating the accolades I’d receive for recognizing the urgent need to seek a correction to the QME’s findings, or imagining how I would ambush the opposing attorney at my next MSC with the “true” value of the report, knowing discovery would close and the client would benefit from the evidence in its final form. Fortunately, a conscientious and patient boss taught me that my impulse was often incorrect, and the more prudent course was exactly the opposite.
In other words, it is often wise not to rush to further discovery, and at other times foolish to have absolute confidence that a trier of fact will accept a partisan argument of what the proper PD value is because the doctor “didn’t get it right”. Over a 25-years span of handling a few thousand MSCs, I eventually realized there is an Ecclesiastes-ish principle to apply before the case gets to a hearing. (If you’d prefer a more secular reference, substitute “Turn! Turn! Turn!” by the Byrds.) There is a time to ask questions, a time for others to ask questions, and a time to “Let It Be” (may as well invite the Beatles along to keep the Byrds company).
Some problems in doctors’ reports that demand clarification are issues which are not helpful for either side to allow to persist, and would only irk a trier of fact who is handed the problem of figuring out what the doctor meant to say. For example, when the doctor:
- leaves apportionment unaddressed, or gives apportionment that doesn’t add up to 100%;
- has confusion over the use of “left” vs. “right”;
- misstates values that seem to suddenly shift at the turn of the page;
- fails to evaluate body parts that were most certainly plead;
- issues a report with missing sections, and even missing pages(!).
In these situations, an interrogatory to the doctor and a supplemental report can save the attorneys from the dreaded event of being shown the door by an unhappy judge at trial. Enough said?
Let’s open up the scene, no doubt a familiar one to the practicing workers compensation attorney: your opponent rates the report and comes up with a number; you arrive at a different number.
Independently, or with our assistance, you have found problems with the doctor’s expression of the impairment. This raises the following questions:
- Can you rely on the trial judge’s determination to coincide with your interpretation of the evidence, or does the situation warrant further discovery?
- Would it be beneficial to draft that interrogatory you’ve already reflexively generated in your mind?
- Is there serious potential for rewarding light at the end of the long tunnel if you schedule that AME/QME deposition six to twelve months from now?
If you opt for an interrogatory, consider carefully the question(s) asked therein. Are you paving the way for the doctor to give you an alley-narrow clarification of a precisely identified issue, or unintentionally opening up a multilane freeway with no lines to keep the evaluator from drifting into a new source of issues? Is it a question whose answer carries significant risk of assisting your opponent rather than your client, where the intended flip instead becomes a flop? If so, consider leaving it to opposing counsel to ask (or perhaps neglect to ask) that question in their own course of discovery.
Deposing the doctor carries even greater potential for unintended consequence. Consider seriously whether pursuit of a clarification of the PD value or of future medical liability is truly worth getting into the cross-exam ring, where a sucker-punch question from your opponent might deflect off your raised glove and straight into your client’s interests.
Sometimes, it may be best to let the imperfect report exist as is, with a plan in place to articulate to your trial judge where the problems in support or rationale lay, and to stand your ground with a trier of fact who seems pre-framed to take the numbers at face value. Our analyses are intended to serve as guidance in making your arguments; never hesitate to follow up with us if in need of clarification, or a “boil-down” of our detailed commentary into a Tweet-length summary that may better fit the patience level of the busy trial judge.
It was once part of my job to both rate and to negotiate based on these problematic reports, Now, as a rating specialist whose responsibilities end at giving fact-based opinion of the AME or QME’s findings, it would be pure hubris to think that I can or should steer the attorney’s course of action with a difficult report.
CONCLUSION
The intended goal of this article is to humbly suggest that you weigh these crucial questions when faced with problematic med-legal findings. Do the benefits of further discovery outweigh the potential risks, or will an invitation to the doctor and your opponent to extend the med-legal record cause a drift further into murky waters and away from the shores of a resolution? Can a fair outcome be found for both sides with what is already on the page, or is strong advocacy and clearer evidence critical to getting that fair result?
As the attorney, you are the captain of the good ship CA WC Claim. As B&B Raters, we strive to tell you where the rocks and ice floes are found in the reports we analyze. Is it best to navigate past these obstacles and press on to the Port of Trial, or can the jam be broken through with the aid of further discovery, where new hazards may emerge from the depths? The course is yours to wisely choose.
David Roman is an expert rater at Bradford & Barthel’s AMA Analysis & Rating Department. Before joining B&B, David worked as an expert rater and appeared at thousands of WCAB hearings as a hearing representative. If you have questions about workers’ compensation permanent disability rating issues, feel free to contact David at droman@bradfordbarthel.com or at (916) 569-0790.
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