Happy Friday, dear readers!
Well, another week, and we made it! You are to be congratulated on your steely will, your courageous focus, and your determined defiance of all the forces of the universe conspiring to keep you from making it this far. In recognition of your super-human will, dear reader, and your apparent wisdom in your choice of which blog to read, I reward you with this: another blog post.
So, many workers’ compensation attorneys, both applicant and defense, reflect with some frustration how much of our practice is spent litigating panels and panel specialty. On more than one occasion, I have seen judges react to the issue of panel disputes with a look that could only mean one thing: “I put my judge’s robe on for this?”
Well, it matters, dear readers. It matters a lot. The general perception in the workers’ compensation community is that orthopedists and surgeons tend to be more conservative, tend to find less WPI, and tend to be more willing to find that the cause of the injury, if there is one, is not industrial. The same perception is true the opposite way for Pain Medicine, PM&R, and Chiropractic medical evaluators. True or false, this is the perception in the WC community by both applicants and defendants.
Recently, the WCAB ruled in the case of Brenda Miller v. AARP/Arch Insurance, issuing a split panel opinion on a case out of Sacramento. Through the magic of the panel process, an orthopedic surgeon ended up as the panel QME and found that the injury, as alleged, was not industrial.
Well, the trial judge issued an order that applicant take nothing by way of her claim, and she appealed, arguing that the QME’s opinions are not substantial medical evidence.
The majority never reached the issue of substantial medical evidence. The panel held that “regardless of whether [the PQME]s reports constitute substantial medical evidence, it was applicant’s burden to provide medical evidence of industrial causation. Applicant did not provide such evidence, did not provide any reports from her [PTP] in rebuttal to [the PQME]’s opinions, and did not seek to depose [the PQME]. Since applicant did not carry her burden of proof, we will affirm the WCJ’s decision.”
The dissent would have required development of the record, but I believe we covered your humble blogger’s findings on that score in a previous post.
The dream of the workers’ compensation system, at least in adopting the 5th Edition of the AMA Guides in 2005, was to provide for an objective system of measuring impairment such that two doctors of two different specialties could look at a case and come up with the same conclusion.
While in theory there is no difference between theory and practice, in practice there is. There are so few QMEs willing to take on cases now adays, that most practitioners are familiar with the QME’s inclinations before the exam. This familiarity is the basis for recommending an AME or the strike of a name from a panel. And the results are visible in cases such as these.
So, as much as we think it is a poor use of our lofty lawyer skills, perhaps litigating panel disputes really is worth it in the long run?
Have a great weekend, dear readers!