DRE II (California) (California)

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DRE II (California) (California)

Postby denyse on Thu Aug 06, 2015 8:55 am

Section 15.3 states, "The symptoms, signs other than fractures, and tests used to assist correct categorization of an individual are defined in Box 15-1." Box 15-1 specifically lists spasms, guarding, asymmetry of spinal motion (not asymmetric loss of motion) and non verifiable radicular complaints. It does not list loss of motion, DDD, etc. Has anyone tried a case when doctor said he/she is not bound by 15-1 findings? My guess is a lot of DRE IIs like this are compromised or accepted, but sometimes you see a doctor DRE II, 8% WPI ,for all 3 spinal regions with no Box 15-1 criteria. I would think this would create a risk for the applicant at trial, if the QME was to state he/she doesn't have to follow Box 15.1. Your thoughts. Query: Would you use a doctor like this as an AME?
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Re: DRE II (California) (California)

Postby vampireinthenight on Fri Aug 07, 2015 8:29 am

I wouldn't use a doctor like that. I think you are right, it does create a problem for applicant at trial. It's one thing to use Guzman to find analogies that exist within the Guides, but I see too many QMEs say that Guzman lets them violate the rules, definitions and condition within the Guides, which, while I am not aware of much authority on the issue, I do not think will ultimately hold up as permissible.

I'm not sure exactly what this QME did, but it sounds like maybe there was some loss of ROM, but it was not asymmetrical?

Often times an IW does not fit in either Cat. If they have loss of ROM, then the IW couldn't really be placed in Cat I.
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Re: DRE II (California) (California)

Postby denyse on Sat Aug 08, 2015 4:17 pm

It is fairly typical to see a DRE II with no criteria. Everyone has loss of motion. What is asymmetric mean? Keep in mind that 15.3 says to use Box 1-5 findings.

Box 15-1 (page 382) defines asymmetry of spinal motion as, " Asymmetric motion of the spine in one of the three principal planes is sometimes caused by muscle spasm or guarding. That is, if an individual attempts to flex the spine, he or she is unable to do so moving symmetrically; rather, the head or trunk leans to one side. to qualify as true asymmetric motion, the finding must be reproducible and consistent and the examiner must be convinced that the individual is cooperative and giving full effort".

An individual's left lateral bending being greater than the right is not asymmetry of motion per the example on page 238 in A Medical-Legal Companion to the AMA Guides Fifth.
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Re: DRE II (California) (California)

Postby vampireinthenight on Mon Aug 10, 2015 8:09 am

I agree with you. If we assume the loss of ROM is not asymmetrical, it likely does not meet the criteria for Cat II. However, under Cat I, there must be "...no other indication of impairment related to injury or illness;". I suppose you could argue that there is no other indication of rate-able impairment, but from a common sense perspective, there is some kind of impairment, is there not?
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Re: DRE II (California) (California)

Postby denyse on Tue Aug 11, 2015 12:32 pm

The way I read it is Box 15-1 findings are required to define impairment. Section 15.3 sounds very specific.

Query: Why allow a doctor to spin (deposition or supplemental). Does a DRE II with no impairment criteria (1), and no clinical Box 15-1 findings (2) in the physical exam merit substantial evidence?
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Re: DRE II (California) (California)

Postby ama andy on Sun Aug 16, 2015 8:05 am

Interesting. One report in particular had DRE II ratings for each of the three spinal regions. For each of the three spinal regions the physician outlined the factors for DRE II. However they were not specifically the AMA Guides criteria for DRE II category. For each region factors listed were evidence of injury, no radiculopathy and decreased motion. For the cervical and lumbar spine muscle spasm on ROM was listed. This was not listed for the thoracic spine. One could see the muscle spasm as justifying the DRE II category, but the thoracic spine did not have any apparent criteria for DRE II. What did DEU do? Rate all three spine regions as given by doctor noting the lack of specific criteria in the thoracic spine. Up to defense to take issue up with doctor. As far as meriting substantial evidence, there is an issue here, but relying on this defense at trial would be risky for the defense.

As far as decreased motion goes, this is not assymetrical motion and in and of itself does not move the impairment to DRE II category. The decreased ROM could be evidence of muscle guarding.
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Re: DRE II (California) (California)

Postby denyse on Mon Aug 17, 2015 1:18 pm

DEU rates whatever the doctor writes. No surprise there. The only rating that matters is the one from the judge's instructions. Also a line judge is not the final word. I get the risks and delays (and costs to defend). One school of thought is to get the doctor to say he is not bound by 15.1 findings. Perhaps even sending over a rating (0% versus 8% e.g.) and a proposed cover letter and ask for a demand. There is also risk for the AA if the QME goes rogue (argues). More times than not, the soft Box 15.1 findings magically appear. Query: Where were they the first time?

If there is an AA involved I am not sure it is up to the defense to create a forum for a doctor to perfect a defect, but...eventually the client wants a file closed.
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Re: DRE II (California) (California)

Postby vampireinthenight on Wed Aug 19, 2015 7:59 am

Reminds me of the tendonitis situation.
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Re: DRE II (California) (California)

Postby denyse on Wed Aug 19, 2015 9:14 pm

16.7d is pretty clear, but QMEs use grip loss all the time. As noted above, Case Management 101.
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