WCDefenseCA

What’s the point in having an Agreed Medical Evaluator?  Judicial economy is typically served when the parties agree on as much as possible in a given case, and the Board’s resources are reserved for actual disputes.  So when the parties use an AME, there are no hearing on panel specialty, timeliness of strikes, etc.

Also, there should be less trials over substantial evidence in medical reports and treating physician’s reports vs. AME reports… because we agreed, right?  For that reason, AMEs are compensated  more than QMEs, and the incentive is there for an evaluator to develop a reputation as competent, fair, and impartial.

But what happens when one party isn’t happy with the AME’s report?  Can it take its proverbial ball and go home?  That seems to be what happened in the case of Mary Lou Smith v. Sacramento County.  The County got the proverbial shaft at trial, on reconsideration, and the matter was denied review by the Court of Appeal.

Applicant claimed to have developed sinus symptoms because of mold in her work environment.  The treating physician found that the water damage in applicant’s office caused mold and this caused applicant’s injury.  Naturally, defendant disputed this finding and the parties retained an Agreed Medical Evaluator.

Did the parties go to Bozo the Clown?  Did they retain their favorite cartoon character to determine medical issues in this case?  Did they declare their shiniest quarter the AME and flip Dr. Quarter several times to answer all of their questions?  No.  They retained a physician with almost 40 years in practice, board certified in internal medicine and pulmonology, with a secondary practice area of Occupational Medicine.

Now, your humble blogger is not saying anything, one way or another, with respect to this AME’s qualifications.  Your humble blogger is humbly silent on that point.  The voices you hear shouting that this AME is a physician that should be deferred to on issues such as diagnosis and causation of injury are the parties themselves – by agreeing to retain this physician, both applicant and defendant screamed from the mountaintops “YES! YES! YES! WE WANT HIM!”

Well, that was until the reports came out, of course.

So, applicant took her ball and went home… to the Board where she argued that the treating physician’s report was the only substantial evidence on record.  The WCJ agreed – he found that the AME’s opinions are not substantial evidence because the results are illogical or unreasonable.  Instead, the WCJ relied on the opinions of the treating physician, which recognized that applicant’s mold exposure inside the work area was less than one-half the outdoor exposure levels, focused on the fact that there was a “higher than normal aspergillus exposure in the area around [applicant’s] workstation and [applicant] had aspergillus in her sinuses.”

So, the AME’s logic is that applicant spent 16/24 hours away from her work station, and those 16/24 hours had as much or higher mold concentration than her work station.  Also, he relied on an industrial hygienist report which found that there was not an extensive area of water damage outside of the break room, and the mold concentration in the building was “not an environment that realistically would produce a fungal sinusitis.”

Additionally, the AME reasoned that applicant had other reasons to develop fungal sinusitis, including a long history of asthma.

In denying defendant’s petition for reconsideration, the split panel majority reasoned that it “found [the treating physician’s] opinion more persuasive than [the AME’s] opinion.”  But that isn’t the standard, is it? The questions is whether the AME’s opinions are substantial evidence – and if they are, the AME’s opinions control even if the PTP’s opinions are persuasive or even more substantial evidence.

The dissenting opinion to the panel made this point very well – the AME had laid out his reasoning very clearly, in a neat and organized manner.  There had been no allegations that the facts the AME relied upon were incorrect, only that the result was unacceptable – how could an employee with fungal sinusitis not recover?

When the degree that AME opinions are afforded weight and authority depends on their results, what incentive is there to use an AME?

This is, by no means, a widespread issue – AMEs are usually afforded considerable weight, but if this is the start of a trend then your humble blogger is concerned about the possible incentives in disputing more issues instead of seeking agreement on as much as possible.