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WC Disabled:
The QME Process: Forensic Reform
or Doctor Roulette?
By Marjory Harris, Esq.
In the sixth in a series of editorials on “Workers’ Compensation
Disabled: What Went Wrong on the Road to Reform?” we explore the changes
to the Qualified Medical Evaluator law and procedure, and how the attempt to
limit forensic evaluations has produced a game of chance with unfair results
on both sides of the bar.
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Forensic Reform?
SB 899 changed
the way parties could obtain forensic evaluations of disputed medical
issues. For injuries occurring on or after 1/1/05, the parties
were limited to one Qualified Medical Evaluator per injury, to
be chosen from a panel of three names. If the worker was represented,
there was the option of using an Agreed Medical Evaluator. There
was no longer any right for both sides to get their own QME.
This
change in the rules of the game meant that the medical-legal issues
could be decided not by a forensic expert of an attorney’s
choice, but by a name drawn at random by an unknowing worker at
the start of the case, from a limited list of names, without regard
to whether that doctor could write a report that constituted “substantial
medical evidence.”
Here is a real life example from my own
caseload: an Asian immigrant works for years as a janitor, injures
his back, and is sent the QME form by the adjuster. He selects
a name because the address is near a bus stop. The doctor he selects,
David E. Fisher, M.D., has been sued many times for medical malpractice
and publicly reprimanded by the medical board. He is not Board
certified. He does not use an inclinometer or question the worker
about ADLs. He offers no “how” or “why” for
his opinions on causation of injury or causation of permanent disability.
He examines workers at 97 locations throughout California (including
two locations in Fresno). A search on the QME database reveals
he has 288 records on three different panels. In fact, the other
two docs on this worker’s panel were not Board certified
either, one was on the discipline list, and both examine at numerous
offices throughout the state.
The workers’ compensation judge
rejected the unrepresented worker’s settlement documents as
inadequate because of the QME reports, forcing the worker to hire
an attorney. Yet the claims examiner refused to discuss using an
AME, forcing the issue to a petition to strike.
In a state like California with so many Board-certified orthopedists,
why are there so many non-Board certified ones on the QME ortho panels?
There is no shortage in the ortho panels (as compared to urology
and dermatology), so why are the same docs allowed to examine in
so many locations?
We need to look to who runs the QME casino to
find the answer, which is “follow the money.” The current
administration is more concerned with employers than workers, and
in saving employers money rather than fairly compensating injured
workers. Why not stack the deck with malpracticing doctors, retired
doctors, doctors who haven’t practiced for eons and the like,
as these docs usually believe that most workers are committing frauds
at worst or exaggerating at best?
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In an en banc decision [Simi
v. Sav-Max Foods, Inc. (2005) 70 Cal. Comp. Cas 217], the Workers’ Compensation
Appeals Board summarized the history of the QME system:
“From
1991 through 2003, and before their substantial amendment by SB 899
(Stats. 2004, ch. 34), Labor Code sections 4061 and 4062 provided
an established procedure for resolving medical-legal disputes in
workers’ compensation cases….Then, effective April 19,
2004, former section 4062 was amended by SB 899. As amended, section
4062(a) now provides, in relevant part, that for represented employees “a
medical evaluation to determine the disputed medical issue shall
be obtained as provided in Section 4062.2, and no other medical evaluation
shall be obtained.” In turn, section 4062.2 as amended by SB
899 still allows the parties to agree on an AME but creates a new
procedure that eliminates a party’s right to select a QME of
its choice, substituting a panel QME procedure.“
To understand the current QME procedure for represented workers,
click
here for Warren Schneider’s flowchart.
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Excessive number of listings for carpetbagging doctors
One of the
major problems with the current panel QME system is the excessive
number of listings for orthopedists and other "traveling docs" who
travel the state and examine injured workers at multiple offices,
then prepare reports through a medical report writing and billing
mill.
For example, "CMLSLLC" is such a company. Their
one-page website, http://www.cmlsllc.com,
states, “California
Medical Legal Specialists, LLC (“CMLS”) was founded
in 1986 to provide administrative services to physicians who perform
medical legal or forensic evaluations." They seem to have
three locations in Fresno alone (all near the Fresno Airport).
One of their doctors, David E. Fisher, M.D., an orthopedist from
San Bernardino who is not Board certified, has 288 listings on
the QME database. Other CMLSLLC orthopedists have numerous listings
at the multitudinous CMLS locations as well: George Glancz,
90 listings; Jose Senador, 84 listings; Van Dolson, 75 listings.
Dr. Senador has 3 examining locations in Fresno, all near the Fresno
airport. He is board certified but has a recent public reprimand
for gross negligence and repeated negligent acts, and a malpractice
judgment recorded against his license.
Worse, the traveling doctors see excessive numbers of patients per
trip, do not write thorough reports, do not (in the case of Dr. Fisher)
use inclinometers or ask about ADLs. Since there is not a shortage
of orthopedic QMEs, it seems that non-Board certified doctors like
Fisher should not even be on the panel, and there is no need for these
doctors to have listings in so many locations, especially when they
are less than 10 miles apart, as noted above for Fresno.
One of my
colleagues had this experience with Dr. Fisher: “I had a client
come in with a report from David Fisher. The client had a serious ankle
fracture and showing RSD by all treating doctor accounts. Fisher went
on to summarize medical records of a different guy 30 years younger,
with a back injury, and went on to describe AMA impairments unfazed
by the incorrect medical history or the fact that he did not have the
operative report describing the instruments placed in the ankle.”
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In a deposition of David E. Fisher,
M.D. taken November 13, 2008 by Brad Wixen, and published in seminar
materials, the doctor testified, when asked about ADLs:
A: My practice,
general practice is to do that, and I have a set of questions we
ask or I ask.
Q: Okay. So you're saying that the report doesn't actually
go through the ADLs specifically?
A:The report does not have a --
I usually put a section on ADLs in the record. I don't see that
in this report.”
In the case I mentioned, completely unrelated to Mr. Wixen’s
case, there was no mention of ADLs in the reports or in the questionnaire
the injured worker was given to fill out.
Mr. Wixen also questioned
Dr. Fisher about his use of an inclinometer:
Q: Do you have an inclinometer you use?
A: No.
Q: Why not?
A: Because
I just don't feel it gives me any value.
Q: Can you elaborate on that?
A: Yes. I have been evaluating patients for 28 years. I have been doing
measurements for 28 years. I feel at this point that I can estimate
a range of motion as well as I can with an inclinometer, and, in fact,
probably sometimes the inclinometers -- the ones that are wired to
a software system, a lot of them are not real objective.”
Page 400 of the 5th Edition of the AMA Guides says, “an inclinometer
is the preferred device for obtaining accurate, reproducible measurements
in a simple, practical, and inexpensive way.” It does not seem
possible to evaluate ROM without two inclinometers, which may explain
why Dr. Fisher did not use the ROM method in my case, although the
DEU thought he should.
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Panel manipulation
by the DWC’s Medical Unit
A few years ago the DWC merged the orthopedic and plastic surgery hand panels
into a much larger panel, “Hand.” Whereas previously the hand panels
contained doctors who actually are hand surgeons and specialize in hand injuries,
and see workers at their offices for QME reports, suddenly there was one hand
panel swollen with the carpetbaggers who operate out of report-writing mills.
In the San Francisco Bay Area, within 30 miles of Pacific Medical Center, the
hand panel is now mostly made up of doctors from Southern California who are
not hand specialists. This allowed doctors like Fisher to get listed on 3 panels
times numbers of locations in various towns, and therefore appear repetitively
on panel lists. Local hand specialists are left to compete with the numerous
traveling docs who are affiliated with report mills.
Is it any wonder the QME system is held in such low esteem by those who are forced
to use this flawed system for forensic evaluation? |
Some comments from colleagues:
“Now, we get skimpy PQME reports that
on their face appear to be rushed, cut and pasted with errors,
non-responsive, don't address ADLs or work restrictions etc. Maybe
it is a matter of education. What kind of training do these PQMEs
get? From what I can see, it must be minimal.”
“It is my burden to prove injury AOE/COE, but my hands
are tied on the evidence that I can provide (i.e. incompetent
evaluators from a certain group in Fresno) and lack of PTPs that
will report in Nor Cal.”
“The entire QME process has been
designed to restrict the injured workers' rights. Initially,
when it was first enacted, the intent was to convince injured
workers that they did not need representation. They could choose
a "doc in the box" instead of hiring a lawyer. The
propaganda given to injured workers is designed to discourage
representation. It should not be a surprise that the QME system
is "stacked" with defense doctors. The carriers and
self-insureds seized upon the opportunity afforded by SB 899
to further restrict rights of injured workers and bring all
applicants into the QME system, correcting their past failed
attempts with the treater's presumption and the HCOs. The revised
QME process is designed to minimize the impact of attorneys
and judges on the system. The combination of the QME process;
the AMA guides; and the MPNs are intended to limit the injured
workers' access to proper medical treatment, restrict attorneys'
ability to affect the outcome of the claim and take discretion
from the judges. Is it really just a coincidence that a group
of anti-worker doctors are part of a state-wide group that
travels up and down the state denying benefits to injured workers?
Not likely.”
“Let us not forget that the workers comp. system is
supposed to deliver benefits expeditiously in exchange for
the injured worker giving up the right to sue the employer
for general damages. Would anyone think it would be fair
to make PI plaintiffs go through a QME to get damages? Not
likely. So why are injured workers treated as second class
citizens when compared to PI plaintiffs?”
“I think the most basic thing wrong
with it is that its purpose is to cost the least money for
the insurance companies. We are forced to play Russian Roulette
with our clients' cases and lives when we have to use Panel
QMEs. In a worst case scenario, we end up with a PQME that
we would never willingly have sent a client to under the old
system, and in the North, we have no treaters who write reports
to overcome the bad PQME. It's just plain wrong to be forced
to send a client to a doctor who you know is going to screw
them. If the current system had started brand new, with none
of the doctors having been involved with workers comp before,
maybe it could have been fair. BUT, the current system uses
all the same old doctors with all their baggage: having been
identified with applicant or defense in the past; having all
the prejudices they acquired from doing workers comp evaluations
for years; knowing where the money to pay them comes from;
etc. It's no wonder they flip flop from side to side or try
to walk a tightrope of middle ground. I have always tried to
use AMEs as much as possible and liked the system where we
were required to try to use them before going to our own QMEs.
Now the insurance companies don't even want to talk about AMEs.
They have figured out that they have nothing to lose by forcing
the use of panels. If the list is favorable to them, they are
happy. If the list is not favorable to them, then they can
talk about AMEs.”
“What is shocking compared to 15-20 years ago is the
triple/quadruple hurdles that applicants must overcome to
get compensation. The first hurdle is the Medical Provider
Network, stacked against the worker, whereas in the past
the applicant could get medical control. The second hurdle
is the QME process, which is stacked against the worker with
new, inexperienced, hungry-for-defense dollars docs, and
the third hurdle is new rules of apportionment, and the fourth
hurdle is the AMA guidelines.”
“Yes, and when judges realize they have a report that
can’t meet the substantial evidence threshold, they
will be forced to get another panel or AME or IME to decide
the issues.”
“The reason the panel QME process doesn't work is that
both parties lose their right to select their experts. Therefore,
the cases become a whimsical chance game. The "obejctivity" now
becomes a game of chance. Yes, a game of chance with the
dice heavily loaded in favor of the defense. I believe the
corps of defense lobbyists who wrote the "reform" legislation
knew exactly what they were doing, in that the QME list would
become loaded with defdocs, retired Gentlemen of the Evening
who were either not interested in or not successful at treating
practice.”
“No matter the system, it can be corrupted, and this
one is most easily corrupted. It is a matter of money, and
who has their hands on the purse strings. When a doctor does
something we don't like, we get to complain about it to the
Med Unit, and it may be put into a pile with a bunch of other
complaints, and vaguely acted upon. When the moneyed interest
doesn't like what a doctor is doing, they just don't pay.
The remedy for not paying is not very cumbersome to the moneyed
interests because they will pay attorneys to argue that they
shouldn't pay for various reasons. Since arguing is not in
the doctor's job description, he usually caves to a discount
rather than doing the process. Eventually doctors get the
message that to get timely paid, they should give reports
leaning toward the interests of those with the money.”
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A
just-released study by The California Commission on Health and
Safety and Workers’ Compensation found that "Panels are assigned
by identifying QMEs with registered addresses near an injured worker’s
residence and selecting randomly from those within a prescribed
radius. QMEs can increase their probability of assignment by registering
at more locations and, to a lesser extent, registering under more
specialties. A small number of QMEs have registered at a very large
number of addresses, dominating assignments. Most of these QMEs
are assisted in scheduling and possibly developing locations by
a small number of facilitating services:
• 63% of QMEs are registered
at only one location. These QMEs are assigned to 23% of panels.
• 3.9% of QMEs are registered at 11 or more addresses. This small
number of QMEs conducts nearly 40% of all evaluations, mainly because
the large number of locations makes them much more likely to be
assigned."
For the full text, click here.
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Games people play
Art Johnson
calls it “doctor roulette.” Many call it “Russian
roulette.” We are bogged down in a myriad of regulations,
forced to rely on the opinions of carpet bagging traveling docs
who process many patients a day and allow outfits like California
Medical Legal Specialists, LLC (“CMLS”) to prepare
the reports and handle all paperwork.
The present system has led to extensive game-playing in panel selection,
multitudes of depositions, petitions to strike, and the like that
was previously only a minor part of the forensic system. In combination
with the AMA Guides, the whole med-legal system has become unduly
expensive, time consuming, and technicality ridden.
Around half of
the QME reports are not even ratable and/or do not otherwise meet
the standard the Workers’ Compensation Appeals Board requires: “substantial
medical evidence.”
It seems that efforts at reform, undertaken without consideration
of potential unintended consequences, have backfired. There was a
presumption that doctors are scientific, that all will come to the
same conclusion, that only one opinion is needed, no matter how complex
the medical issues. Or maybe I give the drafters of SB 899 too much
credit. Maybe the changes in the QME procedure flowed from cynicism
rather than undue faith in forensic evaluators. Maybe it is just
about saving money, at any cost.
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Marjory Harris began practicing
law in 1974 as a defense attorney and later became an applicant's
attorney and a certified specialist. She continues to represent
injured workers in the San Francisco Bay Area and Inland Empire
and mentors attorneys on big cases.
Reach Marjory at (888) 858-9882
or
email to MHarrisLaw@verizon.net
www.workerscompensationcalifornia.com
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