I just had a QME and I need to appeal it. The QME didn't have all of the facts (he even states it in his report)

Asked over 1 year ago - Sacramento, CA

This is about a neck injury at work. MRI's exposed degeneration, stenosis, and few more things. My diagnosis was that I sprained my neck and it aggravated the pre-existing conditions. Last January I spoke to a surgeon about an epidural, he stated the only relief is surgery, I respectfully declined. I never heard from my treating physician, or workers comp again until May (I thought they had simply dumped my case) when they asked me to see a QME. They explained there was never a physicians report submitted and a QME is faster for closing the case.
Let me just say the QME was 15 mins long, he didn't know why I was there, he didn't examine my neck, here's his report: 45 minute visit, 0% industrially dis.
100% non indust., 8% impairment.

Can I appeal this? I'd like an attorney.

Attorney answers (4)

  1. Nancy J Wallace

    Contributor Level 14

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    Answered . IF you have great evidence -- such as a writing or an xray or a MRI -- demonstrating that the neck was in one condition shortly before the injury date and in a deteriorated condition after the injury date, then demand a DEPOSITION OF THE QME TO CONFRONT THE QME with this evidence.

    SADLY it doesnt matter if he spent 45 minutes or 45 seconds with you.

    What matters is if xrays prior to the injury looked virtually the same as xrays after.

    There isn't exactly an 'Appeal' process to challenge the QME.

    If the QME didn't come on a list of 3 doc from the Medical Unit in Oakland, then he really isn't an admissible QME...he's just a guy giving info to the adjuster.

    Another tact: Get a Treating Physician's report that reviews the QME report and punches holes in the QME's findings.

    Another idea: Attend a Free Workshop at your Workers Comp Appeals Board office and see if the Information & ASsistance Officer there is aware of any ongoing problems or complaints with this particular QME (see link below).

    A last-ditch idea: ATTEMPT to get a NEW PANEL of 3 new doctors, and THIS TIME RESEARCH each doctor thoroughly and carefully and pick the one that isn't a jerk (see QME form below):

  2. Brett A. Borah

    Contributor Level 20

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    Answered . I sure wish you'd written in and said "I'd like an attorney" BEFORE you picked and went to a QME. Now, you've stacked the deck against yourself and want someone to unstack it. That's not so easy to do. It can be done but it's not so easy.

    There are some great workers' comp attorneys in the Sacramento area. Find a good one here at www.avvo.com or at www.caaa.org. CAAA is the association for attorneys here in CA who represent injured workers. Or you can call me for a referral. Good luck.

  3. George Ellis Corson IV

    Pro

    Contributor Level 20

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    Answered . Brett Borah knows his stuff. Once the Panel QME says non-industrial, you are swimming upstream. It is possible to change the QME's mind by showing him further evidence at a deposition, but not certain.

    We give free general concepts to be helpful, but you should give ALL your facts to a licensed Attorney in your... more
  4. Darin Laine Powell

    Contributor Level 5

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    Answered . You can challenge the report of the QME before a workers' compensation judge. I would look first at the letter and medical information the insurance company sent to the QME. Did they send it to you first. Labor Code section 4062.3 (b) requires the insurance company to send the information to you 20 days before they send it to the QME. If they didn't do that and just sent the information and a letter of questions to the QME at the same time they sent it to you, you can argue that they violated the law and you are entitled to a new QME. Also, if they sent anything other than medical records, i.e. a personnel file, an investigation report, or any other non-medical records, that is a violation of Section 4062.3(b). Again, the violation should entitle you to a new QME.
    Next, at first blush, it seems as though the QME may be somewhat insurance company oriented. I would go to the information and assistance officer at your local WCAB and ask them to help you in getting a hearing before a judge. If you are able to get before a Judge, try arguing that the QME "showed his stripes (that he is biased in favor of insurance companies)" as it were by rendering an opinion on causation/disabiliity, etc., when he should have admitted he did not have any of the prior medical records and deferred providing an opinion on any of these issues until he was provided that information. Try to convince the Judge that you should be given a new QME because of the bias of this doctor.
    If the Judge does not let you get a new QME, then you must try and convince the doctor that you did sustain an injury and that it did cause some of the problems that you have. You have the right to present written questions to the doctor as well as medical records. If there is no evidence that you had any problems with your neck prior to the injury in question, try questioning the doctor on evidence of pre-existing disability. Try to get the doctor to admit that there is no evidence of prior problems - if that is the case. If you have a history of prior problems, see if you can get the doctor to admit that the injury on the job made the problem worse. If there were prior problems, and you have a prior MRI or X-ray, i.e. one before the injury and one after, does a comparison of the two show a difference. If so, see if you can convince the doctor to admit that the difference was caused by the injury on the job.
    Finally, if the QME remains steadfast in his opinion, see if your primary treating physician from the workers' compensation injury has written a report that finds your injury to be permanent and stationary and the doctor finds some level of disability caused by the work injury. If not, ask him to do that.
    Finally, if you are not successful in the above, try getting an attorney in your local area. Try finding a workers' compensation specialist at www.caaa.org.

    THIS ANSWER WAS WRITTEN MADE AVAILABLE BY MITCHELL & POWELL A P.L.C. THE LAWYER OR LAW FIRM PUBLISHED THIS ANSWER... more

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