AME vs. QME? Which approach is preferable? The answer, of course, is: “It depends… on many things.”
Prior to SB 899, represented cases typically involved either battling QMEs or an AME. Each side selected their own doctor (who, more often than not, would report in a manner reflecting the views of the party who made the referral). Applicant’s selected QME was often wildly liberal; the defense physician tended to be more conservative. Alternatively, if the parties wished to “split the baby,” one or more AMEs were used.
With the advent of SB 899, things have changed dramatically. No more battling QMEs. Options are now limited to:
- Living with the PTP’s findings (in which case this article is irrelevant… read no further if you and your opponents always agree with the PTP’s findings!)
- Agreeing to an AME
- Relying on a state-generated panel of QMEs 1
Initially, many on the defense-side (myself included) opined that an AME was typically the preferable alternative. This theory was supported by two untested theories:
- “Better the devil you know than the devil you don’t know.” 2 Many believed it was better to deal with an AME whose shortcomings you know and can prepare for than with an as-of-yet unidentified Panel QME you don’t know.
- Who’s going to be on the state’s panel? Dr. Liberal, Dr. Liberaler, and Dr. Liberalist! Rightly or wrongly, panel QMEs have garnered a reputation as applicant-oriented, employer-bashers. While this may be true in certain cases, I suspect this perception relates back to Panel QMEs utilized with pro pers where the defense is largely hamstrung in its efforts to get the “defense perspective” to the doctor, whereas the applicant, who meets face-to-face with the physician, has ample opportunity to tell his/her “side of the story.”
Do you still think AMEs are your best option? Think again.
Panel QMEs are highly regulated. Want to be a Panel QME? You had better pass the state’s bi-annual QME exam. Want to be an AME? If the parties agree to you, you’re in!
Having trouble scheduling the appointment? As a Panel QME, you face a ticking clock in the form of a 60-day deadline. As an AME, the world is your oyster! The parties can (and will) wait until you’re good and ready to proceed.
Similar dichotomies are in play in terms of the timely generation of medical-legal reports and the doctor making him/herself available for deposition. Think about it. How many of your “old dog files” became that way as you waited and waited (and waited) for an AME appointment, the AME report, a supplemental AME exam/report and/or AME deposition?
Was the wait worth it?
At a recent speech in Monterey, Acting DWC Administrative Director Carrie Nevans promised she would continue to ensure that Panel QMEs are responsive to the parties. Recognizing that some cases require more than one medical specialty, she assured the audience that new regulations will permit more than one QME panel in multiple specialties where appropriate.
Tired of the state second-guessing your Panel QME request? This, too, will be corrected, assured Ms. Nevans.
The foregoing should expedite the issuance of requested panels; the AD is aiming at issuance within 30 days of receipt of the request. She and her staff are also drafting regulations to ensure that Panel QME depositions go forth without delay.
What is the Administrative Director’s opinion of AMEs? Ms. Nevans may have shown her true feelings when responding to a question from an employer representative. The exasperated audience member wanted the AD’s advice as to how to “handle” troublesome AMEs who fail to report timely, fail to make themselves readily available for deposition, and whose treatment recommendations fail to follow ACOEM and other scientifically based, nationally recognized, and peer-reviewed guidelines.
The AD’s pearls of wisdom: “You’re on your own when you use AMEs.”
Think the AD is telling us something?
Don Barthel is a Founding Partner of Bradford & Barthel, LLP and founder of B&B Rating Services.
1 Options (b) and (c) apply to all litigated cases wherein the date of injury is on or after January 1, 2005.
2 The proverb is believed to be of Irish origin. It has been traced back to the 1539 Collection of proverbs by R. Taverner.
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