You have the right to attempt to resolve virtually any/all workers’ compensation issues by going to an Agreed Medical Examiner (AME). Presumably all adjusters and workers’ comp attorneys have agreed to one or more (likely many more) AMEs during their careers.
I’ve often posed that question to participants in the Continuing Education (CE) lectures that I present, usually two or more times a week. The answer? It typically follows under one of three general headings:
- “I want to rely on a doctor I know.”
- “It’s best to use a doctor with a track record.”
- “Who knows who’s going to be on the PQME panel?”
While there are times that employing an AME’s services may be the best plan of action, I strongly believe that, far more often than not, reliance on PTPs and/or PQMEs is a safer (and less expensive) alternative.
Watch Out Kids, We’re “Splitting the Baby”
While the WCJ, the WCAB, and the Courts formally tell us that they “presum[e] that parties chose an AME ‘because of his [or her] expertise and neutrality'” 1, we know the truth, don’t we? AMEs are used to “split the baby” and make tough decisions that the parties (a) can’t resolve on their own and/or (b) don’t dare allow the WCJ to decide. Regularly throughout California AMEs are implicitly being utilized with little hope of making the parties happy, following the theory that a “good resolution” is defined as a “settlement that makes everyone unhappy.”
How often, however, have you received an AME report and been outraged that the AME (a) didn’t see things your way (no real surprise there…), (b) didn’t find Applicant P&S/MMI, and/or (c) needs to obtain further testing, etc. before he/she can issue a “final” report? When you receive the AME’s hefty bill, how often have you found yourself fantasizing for a very short while about (rightfully) objecting to it until you realize you still need that AME’s “final report” or desposition testimony? At that point, any thoughts of challenging the billing quickly dissipate and the bill is—grudgingly—placed in line for payment lest you run the risk of irritating the very person who will decide many/most of the pivotal issues in your case….right?
If you agree to an AME to “split the baby,” never be surprised when things get messy! 2
AMEs Can’t Be Your Friend
B&B’s Rating Services recently completed our six thousandth AMA Guides-based analysis. In that time, we have seen doctors misapply the Guides for fun and profit everywhere in California (and this started long before the WCAB’s Almaraz/Guzman shenanigans!). What have those six thousand reports taught us?
While PTPs and PQMEs are fully capable of misapplying the Guides, AMEs do so far more often and far more consistently than do PTPs/PQMEs! At first blush, this may seem counterintuitive. After all, being referred to as an “AME-quality doctor” invariably means the physician in question has been in the industry a long while (probably far in excess of the five-plus years that we’ve used the Guides in California 3) and his/her qualifications are so prized that one party (the defense) is willing to pay extra obtain the AME’s opinion.
Given the foregoing, why are AMEs more likely to misapply the Guides?
The answer to this puzzle became clear to me several years ago after a lecture I gave in Santa Rosa entitled “The Misapplication of the AMA Guides for Fun & Profit.” During that presentation, I expressed outrage and frustration at the fact that over 80 percent of the reports analyzed by the B&B Rating Department included errors—many of them very significant—involving misapplication of the Guides‘ rules and instructions. Shortly after the presentation, I was met in the parking lot by two gentlemen who introduced themselves as local AMEs. 4 Both self-professed AMEs claimed that (a) they fully understood the Guides, (b) they could accurately apply the Guides, but—and this is a BIG BUT—(c) they would never properly apply the Guides.
My less-than-brilliant response: “Huh?”
Quickly regrouping, I rephrased my question: “You say you understand the Guides. You could accurately apply the Guides. BUT you’ll NEVER properly apply the Guides?”
Upon recognizing that I wasn’t feigning confusion, the AMEs sought to enlighten me via the Socratic Method.
AMEs: “Don, if we properly applied the Guides, what percentage of the spine cases would receive zero percent WPI?”
ME: “More than a third would fall into DRE Category I, which gives zero percent. So, about 35 to 40 percent would be zero.”
AMEs—grinning at each other: “Correct. And if we properly applied the Guides, what percentage of the post-hernia repair cases would receive zero percent WPI?”
ME: “Just about all of them. Over 90 percent.”
AMEs—nudging and winking at each other: “Correct again! And if we properly applied the Guides, what percentage of post-carpal tunnel release cases would receive zero percent WPI?”
ME: “Well, probably two-thirds would be a zero and most of the rest would be 3 percent WPI.”
AMEs—trying to stifle their laughter: “Correct again. Now here’s the 64-Dollar-Question. If we properly apply the Guides and give zero percent WPI/PD in over one-third of the back cases, two-thirds of the carpal tunnel cases, and nearly all hernia cases, what happens to our AME business?”
It was a terrific question! In their none-too-subtle-way, these AMEs made clear that they couldn’t properly apply the Guides if they hoped to stay in business. Because if they gave out all those zero percents and low (very) numbers that the Guides—if properly applied—normally produce, applicant’s attorney would most assuredly (a) NEVER agree to use that AME again, and (b) circulate that AME’s name—along with a scathing opinion of the doctor—to every CAAA member within shouting distance. In short order, the honest AME soon would be driven out of business!
While I have seen many PQME reports that similarly failed to properly apply the Guides, a PQME who doesn’t also moonlight as an AME shares none the financial downside to honest reporting that AMEs face!
Is this outrageous?
Is this wrong?
But ask yourself, if you were an AME (and enjoying the financial rewards related to that business), what would you forsake first? Your dedication to an accurate application of the Guides (which, in all likelihood, you view as attempting to steal all the discretion that prior PD Schedules bestowed on you) or your thriving business? (California’s physicians understand this. I recently spoke at the annual conference of the California Orthopedic Association. Several physicians asked me whether they could be an AME if they simply “told the truth.” They were concerned becoming an AME meant dispensing with their intellectual honesty. I concur!)
Want to rebut the AME, PTP or PQME?
We’ve all been there before. We just hated the PTP report and thought, “Things can’t get worse. Let’s go to an AME.” Of course, as soon as we start thinking “things can’t get worse,” they inevitably do! Read that freshly issued AME report, and suddenly the PTP doesn’t look so bad after all!
What happens at the MSC and Trial when you attempt to convince the judge that he/she should rely on the PTP and not the AME? You know the answer. The WCJ will almost invariably rely on a long body of cases that say the WCJ is to presume the AME has been chosen by the parties because of his/her “expertise” and “neutrality.” In short, it’s an uphill battle to overcome the unofficial “presumption of correction” that attaches to an AME report. Generally you’re going to need to convince a judge that the AME report is somehow so faulty as to be rendered not “substantial evidence.”
Can this be done?
What are your odds of succeeding?
You’d be better off taking the cash, going to Vegas, and putting it all on black or red!
Those of us who have been defending workers’ compensation cases too long may believe that the foregoing is true of every report upon which Applicant is relying. If Applicant is relying on the AME, or PTP, or PQME, or APQME, the WCJ is more likely to rely on that report over the report on which the defense is relying. While that may be true, it overlooks some of the various methods the defense can use to attack Applicant’s report in a manner calculated at keeping the WCJ from relying on it (or, more likely, making Applicant’s attorney so hesitant to rely on it at trial as to result in a more defense-oriented settlement). What are those tactics?
- Misapplication of the Guides:
As noted above, B&B’s Rating Services has demonstrated that over 80 percent of the reporting physicians misapply the Guides. Even if the doctor and applicant’s attorney are going to attempt an Almaraz/Guzman analysis, that case law requires a traditional application of the Guides also be provided by the doctor so as to permit the WCJ to determine which method (traditional versus Almaraz/Guzman) provides a “more accurate” estimate of WPI. Thus, if it can be demonstrated that the AMA Guides have not been correctly applied, applicant’s attorney faces an uphill battle to get the WCJ to follow the report.
- Almaraz/Guzman I & II:
While virtually every physician in California’s workers’ compensation community has heard of Almaraz/Guzman (and most will probably tell you that the case limits their imaginative ways of increasing your impairment/PD exposure only insofar as they must stay with “the four corners of the Guides“), few seem to have actually read the cases, and even fewer appear to understand how to actually apply them. Most physicians confuse “impairment” with “disability,” oftentimes attempting to justify their increase of WPI by noting the Applicant could not return to his/her usual and customary position (U&C). 5 If the physician upon whom applicant’s attorney is relying has misapplied Almaraz/Guzman (and we point this out to the WCJ in our Points & Authorities), we again undercut the likelihood that applicant’s attorney report will win the day.
- Apportionment Woes:
Learning—and applying—the new (4/19/04) apportionment rules has not proven easy for most reporting physicians. This should come as no surprise: Labor Code 4663 and 4664, with their emphasis on apportioning on the basis of causation, present a dramatic departure from the past. Thus, our PTPs and medical-legal physicians often can’t seem to get their minds around the concept that apportionment can be perfectly acceptable in cases where, prior to the industrial injury, the Applicant was wholly asymptomatic from other conditions. 6
Given these many tools the defense can use to attack applicant’s medical-legal report, rendering that report non-substantial evidence becomes an increasingly easier proposition.
Are you toying with the idea of agreeing to an AME? Has your defense attorney recently suggested agreeing to a physician proposed by applicant’s counsel? Are you inclined to so proceed because you “want to rely on a doctor you know” and/or “want to use a doctor with a known track record” and/or are “fearful as to who’s on the PQME list”?
A PQME can do damage to your case…but it often takes an AME to completely screw things up!
Donald R. Barthel is a founding partner of Bradford & Barthel, LLP, as well as B&B’s Rating & File Consultation Services. Mr. Barthel is an acknowledged expert regarding the AMA Guides to the Evaluation of Permanent Impairment and the 2005 PDRS. Much of his time is dedicated to teaching these topics to adjusters, human resource directors, employer representatives, attorneys, and physicians throughout California and the United States. Have a PDRS or AMA Guides question? Call Don Barthel at (916) 996-1263 or email him at firstname.lastname@example.org.
1 Power v WCAB (1986) 179 Cal.App.3d 775 [51 Cal. Comp. Cases 1141].
2 I recently had the pleasure of deposing an AME in the Bay Area on behalf of another defense firm. After the first hour, the AME could not contain his indignation. Exasperated at all of the questions posed, he observed, “I was selected as the AME. Why are you now asking all these questions?” His point? The parties had, by selecting him as AME, agreed to have him “split the baby.” After having done what he perceived he had been asked to do, why did the defense now insist on an accurate analysis?
3 Recall that the Guides were first used in California effective January 1, 2005. See Labor Code 4660.
4 The names are not being provided here so as to protect the guilty!
5 For further details as to why such a justification is wholly erroneous, see “SAVE MONEY: Don’t Let Doctors Misapply Almaraz/Guzman“.
6 Recall that 50 percent apportionment to preexisting knee arthritis was upheld in the first en banc apportionment decision that issued post-SB 899, Escobedo v. Marshalls, 70 CCC 604 (2005) despite the fact that Applicant was, prior to her industrial injury, wholly asymptomatic.
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