QME advocacy letters (California)

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QME advocacy letters (California)

Postby vampireinthenight on Wed May 22, 2019 10:48 am

Something that has been annoying me lately: Why do certain attorneys feel this compulsion to cite cases and insert case law into their letters? I also see cases "summarized" or quoted in deposition. Sometimes it as lame as "Benson allows you to use any chapter of the AMA Guides by analogy." Other times 3 sentences are quoted from a case, totally out of context and held out as the defining law on something like apportionment. I have seen "causation" defined by 70 year old cases!
That's not to say that old cases on things like causation are no longer good law, but I hardly think that one case alone defines such a fluid term of art. I have to conclude it is either straight up laziness or a thinly veiled attempt to coerce the QME to a certain conclusion.

The problem is, if you are going to summarize case law, you better be really freaking good at it and it had better be complete. If the QME relies on your representation of the law or your interpretation of a case and your representations are either wrong or incomplete, you have just created a big fat problem of insubstantiality that will either ruin your case or force a WCJ to obtain clarification from the QME, both of which are extremely wasteful practices. It's just stupid and unnecessary and does not make you sound smarter or like a higher authority on anything. So just save yourself a headache and cut it out.
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Re: QME advocacy letters (California)

Postby jpod on Wed May 22, 2019 11:07 am

While I am not sure I agreed entirely with the WCAB en banc decision on what is a information and what is communication it did hint at least that doing what you describe could cross the line and turn what would ordinarily be a communication (cover letter) into information which must be agreed to prior to sending to med-legal provider and if not disclosed via the 20 day rule might constitute ex parte communication.
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Re: QME advocacy letters (California)

Postby vampireinthenight on Wed May 22, 2019 1:56 pm

Yeah, but I rarely object to QME letters unless it contains unverified factual BS, like "...his employer has told him they will never accommodate him..." or "...Applicant only filed his claim because he was seeking to retire anyway...". Otherwise, letter objections just turn into pissing matches where no one wins and the QME just gets delayed.

Besides, I think most WCJs would view it as perfectly appropriate to name drop case law. I wouldn't be surprised if the WCJ compromise was to simply respond with my own interpretation of a case, which would just add another layer of potential error. There is a bad habit throughout our practice of relying on buzz-words and case names, while forgetting most of what they stand for. How many times have we heard WCJs asking, "Did the QME provide a Guzman rating?" And then you ask a QME what the Guzman case holds and 95% of the time you either get an incomplete or wrong answer? Same with Escobedo, Benson etc. And those are the major cases. Yet, these letters contain all kinds of lesser-known, obscure case law.

It's totally unnecessary, lazy and, quite frankly, not fair to QMEs. Yes, they are medical-LEGAL evaluators, but they are not legal experts. And they shouldn't be in the middle of applying case law to the facts of a case. The attorneys simply need to roll up their sleeves and prove up the medical/factual support for whatever the claim is and then do their own work of applying the legal authorities.

How else did the first cases get created?
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Re: QME advocacy letters (California)

Postby jpod on Thu May 23, 2019 7:43 am

I think that is because things are so inextricably intertwined...
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Re: QME advocacy letters (California)

Postby vampireinthenight on Thu May 23, 2019 8:07 am

Hahaha good one. :lol:

You want to make sure your letter has a synergistic effect on the QME.
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Re: QME advocacy letters (California) (California) (California)

Postby Barney5 on Thu May 23, 2019 8:15 am

I do not think they should be allowed to send this stuff to QME's in cover letters if the cases they quote are not what they say they are. This misleads the reader who most likely does not have the time to look up the case and believes what was sent to him. I agree with vampireinthenight.
Last edited by Barney5 on Sun Jun 02, 2019 11:22 am, edited 1 time in total.
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Re: QME advocacy letters (California)

Postby vampireinthenight on Fri May 24, 2019 8:13 am

Hey Barney. The situation you describe is a little different. In that situation you have a party making legal argument to another legal expert (Judge) who is charged with determining whether the cited legal authority applies to the facts in the case, whether it is persuasive and whether it mandates a certain conclusion. Now, case law still should not be intentionally misrepresented. Neither should the facts of the case. So one has to be careful or they could get slapped. It is unfortunate if the judge simply relied on a parties misrepresentation of case law. That is pretty sloppy and makes the system look bad.

As to whether it is common practice: yes. Not just in the QME letters, but also in deposition. It is sort of easier to get an objection in at depo and deal with it on the spot, but for some reason attorneys seem to think there is a right to ask a QME about case law. I know why they do it. QMEs bear some responsibility, only because they allow themselves to go along for the ride. When an attorney cites a "case" and asks the QME if they have heard of it, the QME instinctively wants to say yes. They are trained on the concepts of the major cases and feel like they should know what those major cases hold. The "seasoned" AME/QME will demonstrate their esteemed knowledge and practice of WC disability evaluations by showing they have read and understand the cases. They like to explain which injuries are presumptive or not (often incorrectly), even though medically there is no reason to do so.

So when a fragment of a case law is presented to a QME, the not-so-subtle inference is, "This idea is accepted by the judges and the WC community. You can either go with the flow and look to everyone like you know what you are doing, or... you can contradict what the rest of the community is doing and look like a rookie or a rebel that cannot be trusted." It should not be allowed or condoned and I would encourage QMEs to ignore whatever case law you are presented with by a party and stick to your medical guns. That is what matters.
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Re: QME advocacy letters (California)

Postby Barney5 on Tue May 28, 2019 1:23 am

Thank you for your explanation.
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Re: QME advocacy letters (California)

Postby lacompfun on Sat Jul 20, 2019 5:45 pm

The trend does seem to be letters that aggressively state the facts. Seems the applicant should be stating the facts to Doctor as he/she injured and events happened to them.
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Re: QME advocacy letters (California)

Postby lacompfun on Sat Jul 20, 2019 5:45 pm

The trend does seem to be letters that aggressively state the facts. Seems the applicant should be stating the facts to Doctor as he/she injured and events happened to them.
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