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Racial Bias by a PQME?

Alright, dear, readers, it’s Friday.  You’ve made it once again.  And you are to be congratulated, of course.

You know, when a young man or a young woman sets out on a career in law, we are all prepared to see and hear various things.  We know we will meet people from different walks of life, bringing different cases to our attention.

That being said, there are still certain things that raise eyebrows, even among the seasoned members of the bar such as your humble blogger.

One of these things was recently discussed on Lexis, wherein a neurology PQME had concluded that because of an applicant’s “Negro blood” the PQME had certain expectations for the injured worker’s physique.  Of course, applicant’s counsel sought to strike the PQME’s report and the WCJ granted this request.  The commissioners concurred and the PQME’s reports were stricken and applicant was entitled to a replacement panel.

How, your humble blogger doesn’t like to name names, as we all know, but it’s not that hard to review the panel opinion and find the name of the QME.  I imagine that this particular PQME is going to have some difficulty in future cases where this history of apparent racial bias has been exposed.

However, that being said, we have another case out there – City of Jackson v. WCAB – wherein the Court of Appeal upheld a QME’s apportionment to previously asymptomatic genetic factors causing a spine condition (and/or worsening it).

Now, clearly, there’s a difference between identifying a genetic condition resulting in a more severe impact due to an injury and simple racial bias, relying on racial stereotypes instead of medical findings.

But, as anyone who has read a garden-variety medical-legal report will confirm, even the sharpest medical minds, the steadiest physician’s hands, and the nimblest surgeon’s fingers are of little assistance to the often unintelligible medical reports produced by these great healers and evaluators.

The instant case, Beecham v. Swift Transportation Services, is not decided wrongly.  That being said, it is a warning sign for all of us to make sure that, when necessary, we cure the record to avoid a tongue-tied QME from starting out explaining why a particular applicant’s multi-generational family history of high blood pressure resulted in the permanent disability caused by an industrially injury to be considerably worsened, and thus warranting apportionment… and ending up looking like he’s leading a Klan rally.

Have a good weekend, dear readers!

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