Doc, please hold that retrospectoscope.

One thing I like about being in doctor's offices to take depositions is seeing some of the tools of the trade. Modern medical technology is amazing.

If you'd like to see some really strange futuristic tools of the trade (satirical, actually), check out this site:
http://www.freakingnews.com/Medical-Ins ... s--500.asp

In the past there have been a number of medical devices that were either ineffective or fraudulent. There's actually a Museum of Questionable Medical Devices, now located at the Science Museum of Minnesota:
http://www.museumofquackery.com/devices/devindx.htm

Back to that retrospectoscope.

The retrospectoscope isn't like the Toftness Radiation detector, the MacGregor Rejuvenator, the Psychograph, the Micro-Dynameter, or the Relaxacisor. Actually, it's not a device.

It's more like a habit. A habit some QMES and AMES have when they write reports on injured workers.

In the typical retrospectoscope scenario, the QME or AME will be examining the worker long after the injury. The worker may still be off work on temporary disability, certified for TTD by his or her treating doctor. Or the worker may be back to work, having drawn TTD until the return to work date.

In this scenario, the QME or AME, seeing the worker downstream, undertakes to assign an earlier upstream P&S date or an earlier date at which TD should have stopped and the worker been released to work.

Using the retrospectoscope, the QME or AME may try to assign the retrospective P&S date based on what is felt to be a reasonable recuperation time for that particular type of injury. Or assign a retrospective date on some other factors, including the QME/AME's retrospective concerns about the patient's cooperation or doubts about the treating doctor's clinical judgement in certifying the worker as TTD during the period in question.

Never mind that the treating doctor kept the worker off work on TTD, sometimes even over the worker's objection. Never mind that the employer did not provide modified work consistent with work restrictions during the period. Never mind that the QME or AME did not see the worker during the period in question.

Often the QME or AME will offer these retrospective assessments even though the parties have not requested it. The QME/AME may just assume that the parties want such an assessment. Or the QME/AME may be inclined to micromanage the case.

The result: report comes out. Adjuster sends applicant a letter which says in essence: "you owe us money. Send us your check, you have been overpaid. You are P&S and we owe you nothing due to the TD overpayment".

Is this legal? No, according to Mark Borges vs. WCAB (Quality Terminals):
http://www.grayandprouty.com/articles/B ... v.WCAB.pdf

In Borges, the Court of Appeal rejected a WCAB finding that a worker was not entitled to TD benefits during a period when his treating doctor certified his TTD. The WCAB had based its finding on a defense QME report releasing the applicant to work. But there was a problem. The QME report was not signed and transmitted to the parties until months later. The court rejected an attempt to bar applicant from TD benefits based on a return to work assessment that was never transmitted to the worker.

Might there be times where the parties want the QME or AME to address retrospective TD issues? Sure. Perhaps there were earlier dueling QMEs and the parties actually want the AME to resolve a TD/P&S date issue.
And in some cases where there are disputes about separate periods of cumulative trauma, the parties may ask for P&S dates.

But docs..hold the retrospectroscope unless you're asked to use it.

Julius Young
www.boxerlaw.com
(you can subscribe to the blog by clicking on the RSS button on the lower right column under "Most Recent Entries")

The Race.

No, I'm not talking about Big Brown at the Belmont (can you believe there are equine hedge funds?). Not about upcoming Nascar events at Sears Point or Daytona. Nor about the interminable slog toward November change on the Potomac. Or Lehman Brothers' race to raise more capital.

I'm talking today about The Race.

Those in the trenches of California workers' comp practice know about
The Race.

It's part of the QME process. A race to designate the specialty of the examining QME doctor. After the specialty is set, the DWC medical unit assigns 3 names. For workers who are represented, the parties each get to strike one of the 3 names on the list.

What's the rush?

A worker may be treating with a chiropractor or a pain management specialist, but the insurer may rush to select orthopedics as an examining specialty, thinking that orthopedists are more objective or more conservative.

Some attorneys may rush to designate physical medicine specialists, chiropractors, or pain management specialists, thinking those specialties are more sympathetic or better able to look at the range of effects injuries have on activities of daily living.

If the adjuster and applicant attorney can agree on an AME, there is no rush. Currently, interest in using AMEs varies widely from firm to firm.
Some prefer to use panel QMEs, believing they can get faster resolution of cases without waiting months to see booked-up AMEs. Some of these same carriers believe that the QME panels generally "lean defense".

Others in the industry prefer to use AMEs when possible. They prefer
using "known quantities", believing that better quality reports ensue.
AMEs tend to have been around the system longer and in many cases have a much better handle on the complexities of legal concepts such as apportionment and overlap, not to mention more understanding of the AMA guides. AMEs reports are less likely to be questioned by workers' comp judges. Here in the Bay Area some judges have problems with reports from some of the doc-in-the box mills that seem to have an "office" in every town in California.

But where agreement to an AME is not forthcoming, The Race begins.

"Winning" The Race (sophmoric as that sounds, I've had attorneys on both sides tell me they "won" The Race), becomes a goal.

Winning The Race may be determined by how quickly the post office delivers letters from the parties.

But it would be no better if state bureaucrats in Oakland have the power to make specialty determinations from their cubicles.

Ultimately, it's strange that we have a justice system in which the parties aren't free to obtain their own experts to develop their case. Instead, California has adopted a doc in the box system that's subject to all sorts of gaming.

Today's workcompcentral.com has a good piece by Jim McCaffrey on the concerns many attorneys have as the day approaches when new QME regs are unveiled. Check it out on today's workcompcentral.

Stay tuned.

Julius Young
www.boxerlaw.com

The Division of Workers' Compensation has now posted transcripts of testimony at recent hearings on QME regs. They make for interesting reading (see links below to download the testimony).

Testifying in Los Angeles on January 14 were:
Linda E. Atcherley (legislative chair of the California Applicant Attys)
Steven Becker (a chiropractor)
Mark Webb (VP for state relations of Employers Direct Insurance Co.)
Robert Zeidner (attorney with the CAAA regulations committee)

Testifying in San Francisco on January 17 were:
Kristine Schultz (California Chiropractic Association)
Ed Troy (a doctor with one of the large "traveling doctor groups")
Susan Borg (president of CAAA)
Carlyle K. Brakensiek (California Society of Industrial Medicine &
Surgery)
Steve Cattolica (speaking for the Calif. Society of Physical Medicine &
Rehabilitation)
Diane M. Przepiorski (California Orthopaedic Association)
Barry Gorelick (a Bay Area applicant attorney)

You can see the Los Angeles comments here:
http://www.dir.ca.gov/dwc/DWCPropRegs/q ... ngeles.pdf

The Oakland hearing comments are here:
http://www.dir.ca.gov/dwc/DWCPropRegs/q ... akland.pdf

Industrial Relations Counsel Suzanne Marria is working on these regs. There will surely be changes in the proposed regs, but here is the current version:
http://www.dir.ca.gov/dwc/DWCPropRegs/q ... ations.pdf

To see my prior post on this "The Tanning Salon Doc", click here:
http://www.workerscompzone.com/index.ph ... 410-212233

Stay tuned.
Julius Young
(you can see Mr. Young's bio by clicking here:
http://workerscompzone.com/static.php?p ... 6d259248fa

The California Division of Workers' Compensation has finally unveiled proposed new QME regulations.

The regs were posted on the DWC website today. Interested parties have awaited these regs for months.

The regs are in the public comment phase. Public hearings will be held on these in January 2008 in Los Angeles and San Francisco. If past experience is any guide, there will probably be revisions before final regs are adopted.

The proposed regulations are 113 pages, but you can view them or download them by clicking here:
http://www.dir.ca.gov/dwc/DWCPropRegs/q ... ations.pdf

I'll be covering this in more detail in future posts. Stay tuned.

Julius Young
www.boxerlaw.com
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Wouldn't touch it with a ten foot pole.

That's what California doctors seem to be saying about becoming QMES (qualified medical examiners). The California DWC (Division of Workers' Comp) revealed this week that the number of QMEs in California has dropped 25% since 2004. There has been an exodus of about 350 QMEs each year. The number of doctors signing up to take the QME exam is significantly less than the number of doctors dropping out.

QMEs decide many critical issues in California workers' comp cases. In addition to determining whether there was a valid work injury in the first place, they often determine what periods of temporary disability are appropriate, what medical treatment is needed, as well as the rating for permanent disability. Without a stable corps of capable and fair QMEs, the California workers' comp system may crumble.

Workcompcentral.com writer Colleen Murray, quoted DWC spokesperson Susan Gard, as saying that the DWC is working on the problem by trying to have new and easier forms to use. Gard also apparently referred to new DWC regulations which would increase physicians' chances of being chosen to serve as a QME in the communities where they live. Perhaps that is a reference to the problem that has developed with the "fly-around" QME doctors who have "offices" in pretty much every town. That's a problem I addressed in an earlier blog post "The Tanning Salon Doc," which you can see by clicking here:

http://www.workerscompzone.com/index.ph ... 4f787d6811

But any DWC revision of the QME regs is under wraps for the moment.

The exodus of QMEs may mirror a general exodus of doctors from the California workers' comp system. Anecdotal evidence has been streaming in about doctors who no longer want to treat comp cases due to the red tape involved with utilization reviews and treatment guidelines. In some smaller communities this has reached crisis proportions as specialty doctors are no longer available to treat workers. You can see my earlier post on this ("Hasta La Vista Chico") by clicking here:
http://www.workerscompzone.com/index.ph ... 670342ae49

Workers and attorneys are often finding that when they are provided lists of doctors on the MPNs (medical provider networks), many of the doctors simply aren't willing to treat workers' comp patients. Not with a ten foot pole.

Stay tuned.

Julius Young
http://www.boxerlaw.com/news.html
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