As most of you are now aware, we generally advise and counsel against the utilization of an Agreed Medical Examiner (“AME”) in the vast majority of cases and under most common factual scenarios. For one thing, AME’s tend to reflexively find some way in which to determine the existence of injury and then justify those findings often with vague and nebulous discussions, or they may simply skirt the issue altogether by deferring to the so-called “trier of fact.” So many times, we have reasonably legitimate expectations that the chosen AME will be fair, reasonable and responsible. After all, did we not send him/her that great cover letter outlining the issues? And what about those impressive, voluminous SDT medical records and that 100 page deposition transcript? Why did they not even bother to consider those things? What happened?
We all know from our experience, that a majority of the AME reports are generally associated with disappointing and/or incomplete findings or even non-responsive discussions. More often than not, we also have to endure yet more re-evaluations leading to further reports and maybe a recommended consult and some diagnostics, before we get to the bottom line.
Of course there is consideration of the “odds.” Applicant attorneys know by history and experience that the most commonly selected, popular AME’s will typically find injury and then some level of impairment. The odds are also high that the permanent and stationary date will conveniently merge with the date of the actual examination. This explains the general willingness, even eagerness, of many applicant attorneys to use AME’s. But the odds are also significant that they will not be as eager to resolve a case if the “results” are not to their liking.
Here are some of my thoughts on why just saying “no” is probably the right decision in most cases:
- AME’s READILY FIND COMPENSABLE INJURY: Always keep in mind that it is just the applicant and the doctor “face to face” in the examination room, and you are not there. You do not get the chance to “explain” your version of things or how the injury did not occur. There is also the subjective reaction factor that an AME may have to an injured worker, such as “I believe her,” so this mantra can sometimes override the weight of the record and the facts of the case. The examination is therefore often self-serving and even more so when the applicant comes “prepared” by rehearsing with their lawyer or by simply studying the prior medical reports. It seems as if most AME’s tend to find some level of injury, or at least to one or more contested body parts, so that a clear defense “win” is often very illusive. Remember, “injury” from a specific orthopedic standpoint is a combination of a diagnosable injury coupled with a reasonable explanation of the “mechanics” of injury. Many AME’s do not want to be encumbered by the “fine print” of going over injury mechanics. They simply take it as “an article of faith” that the injury occurred in the manner explained by the applicant during the interview and therefore, “it took place.” I have seen very few AME’s who will take the time or the energy to cull through the medical record, looking for whether or not the initial medical report contains the similar depiction of injury as now told to the AME. For CT injuries, the AME’s will almost always assume that the job description provided by the applicant is the job which was undertaken. They rarely think about when the symptoms arose and whether the job duties created injurious exposure. Most AME’s do not know much about the CT injury cases such as Western Growers or Coltharp; so if there is a medical condition, like hypertension or GERD, they will simply plug in “what the applicant claims” and therefore come to the conclusion that there is an industrial component, often without giving actual medical causation much thought or critical analysis. Of course, some AME’s are critical thinkers, but many are not. For psychiatric injuries, using an AME, especially when there are underlying factual disputes, including “good faith personnel actions” and “post termination” considerations, is usually a ticket to a compensable injury finding. This is because many psychiatric/psychological AME’s will readily leave the “factual issues” to the WCAB, therefore putting the defendants in the untenable position of having one of their legs cut out from under them, leaving them on the wobbly foundation of “factual issues” left to the trier-of-fact. This is generally returning to baseline. And, it probably means a WCAB trial on AOE/COE. So, what did going to the AME really accomplish other than a deferral?
- IGNORING JOINT COVER LETTERS AND EXHIBITS: AME’s may frequently ignore the joint cover letter transmitted and the accompanying exhibits and simply proceed to conduct their own inquiry, sometimes brushing aside or overlooking the very interrogatories being presented by the parties. Other times, they may regard all cover letters as much the same and therefore ignore selectively chosen issues which can go unheeded. What I have found is that many AME’s will “review” the provided material, as it is simply incumbent upon them to “summarize” what is being provided without also making a contextual discussion of how this information either supports or contradicts the essential elements of the claim. In other words, we send an AME important medical records showing that the radicular pain to the right leg was taking place 2 years before the specific injury. Instead of thinking about the applicant’s poor historical recollection, let alone a potential lack of credibility, the AME may simply ignore these records or refer to them dismissively, or maybe offering a concession “bone” to the defense by making some small ode to apportionment under Labor Code 4663. Or, perhaps they will use selective portions of these regards with an emphasis upon those sections which support the conclusions by the AME rather than contradict them. I also find that most AME’s will not delve into the transcript of the applicant’s deposition, but instead will simply offer a one dimensional summary of the testimony without the details, much less the contradictory and often misleading testimony. I have seen many AME reports where the deposition was telling and important, but the AME seemingly ignored anything which did not support his or her findings. Maybe it is just too much work!
- IT USUALLY TAKES WAY TOO LONG: It can take several months before the applicant is actually seen by the AME. At least in Southern California, most of the popular AME’s will not schedule an applicant for at least 3-6 months. What happens during that time when you have a TD claim or treatment issue pending? What about the applicant who fails to attend? What about the doctor who has to postpone? Unlike a state PQME, the AME is not bound by time. Under the statutes and regulations, a Panel QME must schedule an examination within 60 days and issue his or her report within 30 days following the examination, subject to some defined exceptions. But at least the time frames are delineated and established. In the case of an AME, it is they who “make the rules,” and there is neither statute nor regulation under which the chosen AME must abide by any specific time constraint. I have seen cases where the AME saw the applicant in March, but as of December, there is no report. Therefore, an AME report is often not transmitted following the examination until “weeks or months” thereafter. In some cases, the waiting is outrageous. The same time disparities between the regulated PQME’s and non-regulated AME’s also arise when the unhappy party decides to schedule the AME cross-examination. This alone can cast a very frustrating light on the case, especially when that doctor is not available for six or eight more months hence and even then, for only a single hour. The other part of this “game” is that many AME’s know that a substantial deposition cannot usually complete in one hour, especially when the other side wants to ask their questions. So, it is not uncommon to have part I of the AME deposition in one year and then part II the next.
- IS IT REALLY DONE IN ONE EXAM? Often, the AME will examine the applicant and then recommend a further or repeat diagnostic test, a new procedure, or even a referral to some other physician before finally determining MMI and impairment. This just starts the process of going nowhere slowly. It is quite common to wait six months for the “initial” evaluation, only to be informed 90 days later in report form that the AME wants some tests or procedures or more records. The next report is now 6 or more months away.
- AME REPORT IS INCOMPLETE? Have you ever seen an AME report where the doctor discusses diagnosis, injury, treatment, TD and PD but ignores, and therefore fails, to address apportionment? You are now in the untenable position of having to either direct a joint interrogatory to the doctor or face the proposition of having to schedule a cross-examination many months down the road. It seems as if the “overlooking” of an important issue occurs more frequently than it should. Also, some AME’s have “rules” by which they will not agree to fix something or make a correction without a formal cross-examination. This just adds to the frustration content.
- WHERE ARE ALL OF THE RECORDS? At long last, you receive your AME report, only to discover for the first time that the doctor did not get a document or an important medical record. Why did they not tell us before the examination? Why did they not call and tell us? Now, we face a potentially adverse medical report, while having to seemingly scramble to obtain the needed but not included records, which the AME never received. And what are the chances that the AME will get those records and then change his or her mind? There is a maxim here: Once the report is written, it is much more difficult to get the AME to change the determinations after-the-fact. Often, you end up sending the “vital records” after-the-fact, only to get a two page report from the AME summarizing those records with the short and clipped retort, “and my opinions remain unchanged.”
- WILL THE OTHER SIDE NOW SETTLE? Some applicant law firms will endeavor to lull you into thinking that the usage of the selected AME will be the hopeful, anticipated gateway for case resolution. (Ever wonder why so many applicant lawyers are overly eager to use AME’s?) Actually, with some of the firms you might be walking into a carefully predesigned “trap.” While they attempt to impress you with their willingness and flexibility to go to the AME, what happens if the findings are only modest to moderate when the report comes out? Will the case now really settle? In many instances, the short answer is “no.” You will get the automatic “objection to the AME findings,” followed by the deposition notice. Why? Because applicant attorneys know something. They know that the longer the process prolongs, the more time passes and the more opportunities the AME has to write another report, which will usually tend to make the case more valuable, and hence the expectations of a higher settlement “down the road.” I could count on my hands the number of times I received a very favorable AME report coupled with the eager willingness of the other side to now settle under those findings. It really does not happen very often in the world of practice.
- TIME FOR THE AME’s DEPOSITION? Question: How many times do you see one side or the other setting the AME cross-examination? Most AME’s do not want to deal with a supplemental report or response to interrogatories in order to clarify or explain something. A few may respond to an interrogatory, but this now calls into play the willingness of the applicant’s counsel to cooperate. Why should they? Some applicant attorneys will routinely schedule the cross-examination without prompting, knowing that with only a few well-placed questions, they will more than likely get the AME to either recommend a new referral or another evaluation (“Doctor do you not think my client should have a pain management evaluation or sleep study?”). This is actually something which occurs frequently. AME’s seem very welcoming to leading questions designed to get another diagnostic test, a further examination, a referral to another specialty or another “examination and report.” Most AME’s will be lead into saying that they thought the applicant was “honest.” In fact, they probably have no idea who the applicant is, let alone their honesty/dishonesty. And then there are those dangerous leading questions, “My client is depressed and anxious. Should he or she be evaluated by a psychiatrist?” And, “My client has gained weight. Do you recommend a weight loss program which would help with the back pain?” Of course, the answers will be “yes.” So, the AME train rolls on.
- IS A RULE OUT OF FURTHER TREATMENT REALLY THE END? Regrettably, the answer is often “no.” By simply going out and self-procuring or adding a “new body part,” the other side is now starting a new phase of the game.
SO WHEN DO I USE AN AME?
Here is an easy reference chart which correlates by issue to whether you should generally use an AME. Obviously, the decision process must be accorded on a case-by-case basis, so that no rule should be applied in every case. But, the following are some suggested issue structures, which tend to correlate with whether or not to use an AME.
Always use caution when selecting an AME. One good way to test the quality of an AME is to find a recent report and look at the apportionment discussion. Does the AME address apportionment to “causation” or to the “disability?” If the apportionment discussion is weak, the best advice is to generally “pass” on that AME.
SO WHEN DO I USE AN AME?