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By Robert G. Rassp, Esq.
This story is true. The names were changed to protect the guilty. This story is a great example of what is wrong with the panel QME process under Labor Code sections 4062.1 and 4062.2.
There are many cases where claims administrators are paying for medical reports and deposition testimony from panel QME physicians that are not substantial evidence and would not hold up before a trial judge or the WCAB. This results in delays of resolving medical issues in our cases and causes increased costs for the claims administrators and employers. When a new evaluating physician has to be selected because of an incompetent panel QME physician you receive in the end longer and unnecessary periods of payments of TTD benefits and double the costs of medical-legal evaluations. Not to mention increased defense attorneys fees.
The Applicant was employed for 12 years as a textbook clerk at various high schools. Her job required significant lifting, bending and climbing. She had to unload boxes of text books, put them on shelves and distribute them to students. In addition, she had to collate and assemble photocopied materials for teachers and staff. She worked for the same employer from October 1997 through December 2009.
She had the onset of low back pain prior to her employment with the school district but was cleared for full duties in a pre-employment physical examination. In fact, she was eventually diagnosed with a Grade I spondylolisthesis of L5-S1. A person with Grade 1 spondylolisthesis has up to 25% slippage of one vertebral body over another and in most cases, a person is born with this condition. In most people, this condition will not result in any symptoms during their lifetime while for other people, the condition can become symptomatic from being aggravated by twisting activities, heavy lifting and repetitive lifting, bending and stooping activities.
On April 27, 2010, the Applicant had an L5-S1 anterior and posterior interbody spinal fusion at Kaiser Permanente. In fact, all of her treatment for her spine was at Kaiser. The records from Kaiser demonstrated references over the years to low back pain that was caused by or aggravated by her work activities as a textbook clerk.
The Applicant filed two claims, one for a specific injury to her lumbar spine and the other as a cumulative trauma injury to her lumbar spine as a result of repetitive and heavy work activities over the 12 year period she worked as a textbook clerk. In addition, she claimed that cardiovascular hypertensive disease was aggravated or caused by her industrial stress and strain. The employer denied injuries AOE/COE. The Applicant’s deposition was taken by counsel for the school district. The parties were unable to agree to AMEs in orthopedic spinal surgery and internal medicine so the panel QME process was initiated by the Defendants pursuant to Labor Code section 4062.2.
The panel QME physician in orthopedic surgery was selected by the parties by default – each side had stricken a name on the list of three choices and he was the “last doc standing.” Each attorney sent the panel QME an advocacy letter with no objection and a jointly prepared list of documents for him to review.
The panel QME in internal medicine was agreed to and in his report, he opined that part of the Applicant’s cardiovascular hypertensive disease was industrially related.
THE ORTHOPEDIC PANEL QME’S REPORT
The orthopedic panel QME’s report was issued and did not make any sense to anyone. Here are excerpts, quoted verbatim:
“There is tenderness to palpation of the lumbar spine.” [The PQME then goes on to list range of motion measurements of the Applicant’s lumbar spine listing “Normal ROM” from a source other than the AMA Guides 5th Edition].
“Examination Summary”: The Applicant has operated lumbosacral spine, fusion of L5-S1 with cage. She sometimes has pain to the right leg.
“Disability Status”: The Applicant is retired and is not working.
“Causation”: The causation was the incident on March 25, 2009, October 16, 1997, and October 2, 2007.
“Apportionment”: No Apportionment.
“Activities of Daily Living”: The Applicant needs help in doing the laundry. She is dependent in doing housework.
“Subjective Complaints”: The Applicant complained of pain in the lower back and has residual after the operation. She complained of pain in the right leg sometimes and also pain in the right hip sometimes.
“Objective Findings”: The Applicant has operated lumbosacral spine, fusion of L5-S1 with cage. She sometimes has pain to the right leg. Apart from the back she has no other problem from orthopedic point of view.
“Work Restrictions”: The Applicant is retired.
“Future Medical Care”: The Applicant needs analgesics, exercises, and may need physiotherapy and operation, which will be on nonindustrial basis.
“Impairment Rating Per Fifth Edition AMA Guidelines”: The Applicant has 0% impairment rating.
“Diagnosis”: (1) Osteoarthritis of the lumbosacral spine, (2) Residual from operation of lumbosacral spine.
“Discussion”: The Applicant stated that she had acute injury a couple of times. She was working in the text room and she was doing a lot of climbing and bending. It was a warehouse full of books. She filed a claim in 2007. She was assembling packages, was having pain and filed a claim. The Applicant had an operation to the lumbosacral spine, fusion of L5-S1 with cage.
The Applicant was seen by me as PQME on March 3, 2011. She was working as a clerk for [the school district] from October 1997 to December 2009 for 12 years. She retired in December 30, 2009. She has a well-healed scar with marked restriction of movements of the back and pain in the right leg sometimes.
I do not think after extensive review of records that this was an industrial injury. This is due to osteoarthritis of the lumbosacral spine and was operated upon. Under 4663, osteoarthritis is nonindustrial. All treatment in the future will be under nonindustrial basis. In August 21, 1996, it was noted that she has spondylolysthesis 25%. The spine revealed some degenerative changes secondary to the surgery and marked degenerative changes L5-S1. I do not think this was due to repetitive injury. Sprain/strain may be source of problem for which she got treatment.”
THE PANEL QME’S DEPOSITION
Needless to say, the PQME’s deposition was scheduled in order to confront him on his knowledge of the medical-legal issues in this case. First and foremost, the physician never rated the Applicant’s impairment. Secondly, he ignored the Kaiser records which were replete with statements like “her work is aggravating her low back condition,” plus “her back pain is gradually getting worse due to her lifting books and collating papers at work,” and “her job stress and chronic back pain is affecting her blood pressure.” Thirdly, the PQME used the wrong “normals” for range of motion of the lumbar spine. We will never know where his “normals” came from. Fourth, we wanted to make sure he understood the legal definition of a cumulative trauma injury: any industrially related injurious exposure that causes a disability – temporary, permanent or both. [See Labor Code sections 3208, 5412 and 5500.5(a)].
Here is the PQME’s deposition testimony by the Applicant’s attorney, again verbatim:
Q: Doctor, you are an orthopedic surgeon, correct?
Q: Are you Board Certified?
A: I am not board certified in this country, but I am as far as from England and I did my residency at the King County/Downstate. And soon after that, they provided me – they said ‘You are so much experience.’ They made me the assistance professor and worked over there.
Q: Move to strike –
A: But I am not board certified. I am board qualified in USA.
Q: I will move to strike the answer beyond his answer that: No, I am not board certified.
A: No, it is not necessary.
Q: Excuse me, sir, there is no question pending right now. I’ll ask the questions. I notice in your C.V. that you’ve handed us today and we will mark as Applicant’s Exhibit A. Have you published any papers in the last ten years? [Note from author: The PQME’s CV shows he is 76 years old on the date of his deposition with nothing published in 30 years and no current listing of any hospital staff privileges].
A: This has got nothing to do as far as you will ask me only those. One, I must warn you. You will allow me to make statement of whatever you ask me. You asked me board certified, but you did not let me explain why I decided not to be a board certified. You will have to allow me to talk to you. If you obstruct me, then I will not reply you.
Q: Do you have an explanation about why you are raising your voice right now?
A: But you will have to let me know. I have worked with many attorneys. I have done many depositions, but at the same time you have to allow me, as I shall allow you, to talk and explain.
Q: When was the last time you took a class under the AMA Guides to the Evaluation of Permanent Impairment 5th Edition?
A: I have to do every year, every two years for the renewal. I have to supplement 12 hours of my QME before – 12 hours of my evaluation before I can get qualified for the QME. And that is – I have been doing it ever since I have been working as a QME. And this QME is not my only job. I am mainly an orthopedic surgeon. I do the operation. I have been doing in the same hospital for the last 25 years. And this is a part-time job I do, and I do it in my office too, the same thing, qualified medical evaluation.
Q: I will move to strike the answer as nonresponsive. Doctor, I’ll ask you again: Doctor, what was the last class that you took under the AMA 5th Edition? What was the last class you had?
A: I do not understand you, what you are talking. I am only trying to explain to you that every year I have to do. I don’t remember the date. I think the last date may be when I was in San Diego attending the orthopedic conference, and I did attend over there the – I think it was in March 2000.
Q: Did you have an opportunity to review your QME report dated March 28, 2011, in preparation for today’s deposition?
A: What do you mean? I do not know. Are you asking question about this patient, or are you asking whether I am qualified to do the QME or not?
By Defense Counsel: No. No. If I may, he said: Did you look at the report that you wrote to prepare for today?
A: I did read the report, and you have here the chart. I reviewed the chart too. And these charts are about 9 inches thick. And I reviewed the chart, and I have forwarded the important stuff, whatever is inside it, and I did review it, no doubt about it. But do not ask me that I remember everything, no I don’t. I would have to look into it before I can answer your questions.
By Applicant’s Counsel: Can you please define for us what a cumulative trauma injury is, please?
A: Are you trying to test me whether I know the cumulative trauma or not?
Q: I’m just here to ask you questions.
A: I do not need to answer you when you are questioning my knowledge.
Q: You’re refusing to answer my question?
A: You are asking irrelevant question that is not related to the patient. That is why I am refusing.
Q: Okay, then, therefore, I will mark the deposition accordingly and terminate this deposition. And I will offer a stipulation of defense counsel to relieve the court reporter under her obligations under CCP section 2025.520(b) through (e), just the old stuff; and that the deposition transcript original will be sent to Applicant’s attorney’s office for custody and filing with the WCAB.
Defense Counsel: Copy to Defendants.
Applicant’s Counsel: Doctor, do you want a copy of the deposition transcript?
A: I would like to state it also he’s asking –
Q: No, I’m just asking –
A: I have to explain. And then he’s asking me all irrelevant questions. I do not want to answer those irrelevant questions, what is a cumulative trauma, what is a – I am a qualified workers’ comp evaluator, and I do not have to answer those questions because they do not relate to this patient. Unless he wants to ask me specific questions, only then I will answer, and I will definitely need the copy of the report. They will have to sent [sic] it to me. And if you want any corrections, I will have to charge you whatever the time I spend on doing it.
By Applicant’s Counsel: I was going to instruct the reporter to send the original to applicant’s attorney’s counsel with a copy to the doctor and a copy to defense counsel. And I mark for the record that this deposition transcript along with the doctor’s report will be transmitted to the DWC Medical Unit with an appropriate letter.
By Defense Counsel: So stipulated.
THE POST SCRIPT
A formal discovery motion to strike the report of the Panel QME was filed under a Declaration of Readiness to Proceed for an AOE/COE Priority Conference. The WCJ strongly suggested the parties at this point agree to an AME in orthopedic surgery. The claims administrator declined the WCJ’s suggestion.
The WCJ issued an order striking the panel QME’s report as not substantial evidence and because the doctor refused to answer questions about his knowledge of what constitutes a cumulative trauma injury. We never got to ask the PQME substantive questions about his examination, physical findings, why he did not provide a WPI rating, his definition of apportionment, his understanding of the difference between causation of injury and causation of impairment, the concept of aggravation of a pre-existing condition, or a review of the compensable PQME report in internal medicine.
The WCJ issued an order to the DWC Medical Unit to provide a new PQME list of orthopedic surgeons within 30 days of the date of the Order. At press time, the parties are waiting for the new PQME list. Oh, joy! We’ll see who we get this time around.
Defense counsel is now trying to seek restitution from the PQME for its $3,125.00 in payment it sent the now discredited orthopedic PQME. Applicant’s counsel is seeking reimbursement from the claims administrator for the $500.00 expert witness fees that were advanced for the PQME deposition. Applicant’s counsel is writing a letter to the Medical Unit advising the acting Medical Director to investigate this PQME.
Unfortunately, this scenario occurs all too often in our cases. We advocate returning to the days when each party is allowed to obtain one QME in a single specialty. We could survive very well with one QME from each side and with permission from a WCJ or the DWC to obtain QME reports from more than one specialty with a showing of good cause. The market would shake out flaky QME physicians like this one. We are sure you all have war stories like this one but the deposition of this PQME was one of the funniest we have ever experienced in 30 plus years of practicing workers’ compensation law.
In deference to the defense counsel who attended this deposition, there was no way this PQME could be rehabilitated neither as a witness nor in his medical conclusions. The only regret is that neither attorney warned the doctor that his refusal to answer deposition questions could result in his losing his QME license and causing a restitution order for his fees.
Now the claims administrator will pay another $3,125.00 for a new orthopedic panel QME to examine the Applicant, read 9 inches of records and write a report. We will roll the dice one more time. We wonder how long the TTD period will be for retroactive benefits due to the intransigence of the claims administrator plus an incompetent panel QME the first time around. We need to have the law changed to save time, money and aggravation. The DWC Medical Unit does not have a full-time Medical Director to monitor the quality or lack thereof of the panel QME reporting. We finally ask the rhetorical question – how many more reports like this one did this panel QME write?
© Copyright 2011 Robert G. Rassp, Esq. All rights reserved. Reprinted with permission.
Read The Rassp Report, a law blog by Robert G. Rassp, Esq.
Read The Rassp Report, a law blog by Robert G. Rassp, Esq.
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