WCDefenseCA

Before the Panel QME process became mandatory, a California workers’ compensation defense lawyer faced a different landscape when it came to resolving medical disputes.  Sure, one could always go the Agreed Medical Evaluator route, just as now, but there was a certain honesty and freedom in the way contested disputes were resolved.

Every applicant’s attorney would rent his favorite quack who came with standard-issue Humpty-Dumpty goggles, and every defense attorney would retain a reasonable and qualified physician to offer a medically appropriate evaluation of the applicant’s alleged injuries.  How dare you suggest that your balanced and honest blogger is showing some sort of defense bias?  Nothing could be so wrong or hurtful!

Now, however, the landscape is a bit different – unless the parties can reach common ground with an AME, they are forced to saddle themselves with a PQME.  This gives rise to several problems, but one in particular is the focus of this blog post – work restrictions.

Your typical PQME has a practice treating patients and, to supplement the coffers, accepts PQME evaluation referrals under the state workers’ compensation system.  Dr. PQME knows that no doctor-patient privilege exists because Dr. PQME knows that the applicant is not there for treatment, but for an unbiased evaluation of such issues as causation, impairment, and apportionment.

Imagine a typical PQME – from 9:00 a.m. to 3:00 p.m. the day is stacked with 20-30 minute appointments with treating patients who need the PQME’s opinions to get better: the only one who suffers if the patient isn’t telling the truth is the patient.  After a day of such encounters, the PQME starts his medical-legal evaluation of the applicant.  If the applicant says “I can’t do X” the PQME typically writes down, “applicant can’t do X.”  When the applicant later says “I’m better now, I can do X,” Dr. PQME obliges again, and lifts the work restrictions.

But, legally, the PQME has a duty to both parties – no longer the pocket expert of one attorney or another, the PQME must protect the injured worker from future injury, in that the PQME must impose work restrictions, but also protect the employer in that the PQME must not clear the applicant for work that could aggravate the injury.

What your humble blogger is suggesting is that PQMEs must make more effort to objectively, and personally, evaluate the work restrictions that are appropriate.  It appears there are far too many cases of restrictions imposed and described simply to increase the applicant’s recovery based upon the subjective complaints.

PQMEs are not in the position of the personal physician and should not treat medical-legal evaluations as regular doctor-patient meetings, trusting applicants at their respective words regarding work restrictions.  Rather, PQMEs should follow medically objective standards instead of allowing the applicant to write his or her own work restrictions (and impairments too).

And when PQMEs let subjective complaints and the applicant’s pen decide work restrictions?  The applicant collects higher permanent disability pay-outs before miraculously “recovering” and enjoying lighter work restrictions.  Only by relying on objective signs of impairment can a PQME independently verify applicant’s statements – those that inflate impairment and those that release work restrictions.

Perhaps this is just empty ranting, but your forward-looking blogger hopes that every reform begins with a blog post from an angry workers’ compensation defense attorney.