Question on Consult Vs Med-Legal (California)

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Question on Consult Vs Med-Legal (California)

Postby appliedpsych on Wed Mar 20, 2019 7:56 pm

I recently performed a neuropsych eval at the request of a neurologist who was treating a person supposedly exposed to toxic fumes in the workplace. This was strictly for the purposes of consulting with the treating doc. It was approved by the WC adjuster based on the doctors request. I sent the report.

Then I got a letter from an attorney involved in the case, stating an objection to my report for not being substantial medical evidence.

In my experience, while an AME or QME report requires that standard, I am not sure that fits on a simple one time consult at the request of the treating physician, simply to inform him to one part of the patients status.

Am I off base here? Never had such and issue come forward on a simple treatment consult.
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Re: Question on Consult Vs Med-Legal (California)

Postby Manila on Thu Mar 21, 2019 9:05 am

I am interested to see what the attorneys who participate in this forum have to say about this and if findings from a non-medical-legal consult can be stricken or otherwise disregarded on the basis it is not substantial medical evidence. It also would be illuminating in this case to know the basis for an attorney on the case stating the not substantial evidence objection.
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Re: Question on Consult Vs Med-Legal (California) (California) (

Postby appliedpsych on Thu Mar 21, 2019 6:29 pm

Oh the reason for the objection was clear in the letter. The attorney did not like that I said that a few areas of mild to moderate cognitive weakness substantiated by the testing could have resulted from the industrial exposure. My words were 'may have resulted from the subject industrial injury', as I found no basis of any other reasons for the problems. The attorney opined that the problems could have come from applicant age or from another industrial physical injury that was not the focus of the injury that I was focused on.
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Re: Question on Consult Vs Med-Legal (California)

Postby vampireinthenight on Fri Mar 22, 2019 9:34 am

Short answer is that it is the attorney's opinion, so "whoop-de-doo". Attorneys will claim this all day long when they don't like the result.

Any award of the WCAB must be based on substantial evidence. So, if your report is not thorough enough, it might not support an award on its own. That does not mean it is "stricken" or inadmissible or cannot be used by another evaluator to then come up with a substantial opinion.
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Re: Question on Consult Vs Med-Legal (California)

Postby mytwocents on Sat Mar 23, 2019 5:08 am

Agreed, but it’s not clear what the attorney was objecting to. If he objected to payment for your consultation and report, he’s out of line. Payment for a treatment consult is not dependent on the report being substantial evidence since the purpose was to help the referring physician to properly treat the patient and not to prove the applicant’s case before the WCAB. In any event, the adjuster authorized the consult. You get paid per the OMFS, though, and not medical-legal rates.

On the other hand, if the applicant claims your report proves that the cognitive weakness is related to the industrial exposure, it’s not substantial evidence of that claim because “may have” is not good enough. The legal standard is “reasonable medical probability” or more likely than not. Even if you had said the causal connection was reasonably medically probable, your opinion still would not be substantial evidence unless you gave reasons to support your conclusion.

This doesn’t mean you did anything wrong. You gave your honest opinion based on your medical expertise and that’s all you’re required to do. If they want a report that will serve as substantial evidence of medical causation, they need to get a QME.
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