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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)

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

Posted

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):

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Asker

Posted

Getting a new panel is exactly what I was hoping to do, but I don't know how to get that or even if I'm allowed. On the previous xray-it was taken before I started working at the company and I worked there for 8 1/2 years. My xray didn't show any serious problems with my neck, but now I am actually missing a disc and have a narrowing of the chord. I believe it is evidence of an occupational disease. Also, I have heard about the treating physicians report option, I plan to look into that. Unfortuantely, I was treated at a clinic with a constantly changing staff of Dr.'s, and they are a lousy clinic that I attempted to transfer out of when my Dr. changed the first time. My original Dr was great, the Dr. I had when I left was terrible, and he's the one that never bothered to send any reports to workers comp, that's why my arm was twisted to hurry up and pick a QME. I believe I have a right to at least have the physician's report completed but now that this QME has happened I suspect it will be difficult to obtain one. Also, that clinic hasn't treated me in 11 months (that's how long my case was forgotten about-that's in the words of my claims adjuster). I have called the adjuster to try and make these requests but she appears to be avoiding my calls. Now I'm just waiting for her written correspondence. I am having trouble finding a law office who will accept my case, due to the fact that I already had a QME. I need to find someone who's willing to help me "unstack the deck."

Nancy J Wallace

Nancy J Wallace

Posted

NEVER CALL. The adjuster has zero obligation to take calls or returns calls, so it's 110% waste of time calling. The adjuster has evidence the condition is Non-Industrial, so nothing will be authorized now, so phoning is worthless. I'd pick a Pain Specialist off the insurer's Medical Provider Network, and WRITE that you've elected this as the Treater for your Med-legal treatment report and that this Anesthesiologist/Pain Specialist MUST be 'authorized' to schedule you by Dec. 24... ....OF COURSE YOU WON"T BE AUTHORIZED TO SEE ANYBODY. BUT then you can go find a physician on a Lien because you were refused your treating physician's final med-legal evaluation. SEE IF ANYBODY on the MPN will also agree to do a treater's evaluation on a lien given the adjuster will refuse to authorize anything. There used to be Chiropractor in Sacramento who aligned with Orthos, they would write a joint report without being pre-authorized. You want to find somebody on the MPN because there is case law stating only an MPN physicians report is admissible...

Asker

Posted

Thanks, I wrote a letter today. I also included my complaints about the situation in general, not sure if I was supposed to keep it all separate or not, but I wanted to be clear with my adjuster that I have serious issues with the QME dr. I emailed it to you, but I think I'll go ahead and post it here too.

Asker

Posted

This is the letter I plan on faxing today, I was hoping for some feedback first, because I suspect I took it too far:) Thanks I have phoned several times and do not hear back from you. Please send an acknowledgement of receipt of this letter, because it is time sensitive. I am writing in to dispute the QME report and request my right to a med-legal evaluation. My hope is, that State Fund will be considerate of the fact that my case has been stagnant for almost one year and in the hastiness of closing it out, I was required by you to go to a QME and was never given the opportunity to have a final report completed by my treating physician. I have spoken with an attorney (I have not retained one yet) who informed me that the QME is considered a second opinion when there’s a dispute about the treating physicians report. I never had a treating physicians report though, it hardly seems like all of my legal rights were observed here. I realize I had moved from Redding to Sacramento, but I am more than willing to drive to Redding and see RIOH for my final medical report so that I get to have my second opinion. I am also more than willing to see another QME, but not the same, I want my second opinion, This is my request: 1) I was refused my treating physician's final med-legal evaluation. When you contacted me regarding the status of my case several months ago, you did not inform me of my right to obtain a final physicians report. Instead, you simply required me to choose a QME, stating that if I did not choose one you would choose for me. After the QME appointment I spoke with an attorney, who advised me that the QME is designed to be a second opinion. I never had a first opinion (final report). I don’t know why I was refused that, I would have been willing to drive to Redding and see my treating physician. I called you to discuss this but you have not returned my phone call. A) I want to exercise my right to a med-legal evaluation so that I can have my second opinion. B) I am electing Portwood, Margaret M, MD (2288 Auburn Blvd ste 101, Sacramento, CA 95821) (916) 640-8161 as the Treater for my Med-legal treatment report and I would like to request authorization to be scheduled by Dec. 24, 2012. The following paragraphs address my complaints regarding the QME that I met with: 2) The QME did not have all of the information regarding my case, he stated to me at the appointment that if I didn’t have my MRI/XRAY’s he could not give a complete report. Please refer to the QME report, in which he states that he reserves the right to re-evaluate, due to the fact that he did not have and MRI or X-rays to personally evaluate. 3) I do not wish to be re-evaluated by him, please see my reasons for this below: A) I felt strongly that he harbored biased opinions of my situation. He specifically made statements that were exactly the same as statements made to me by the new acting director, Marjeanne Stone, of empire recovery center. I would like an investigation regarding a personal/professional connection he may have with her. When he asked about my injury, he chuckled while I attempted to explain details to him, the primary detail being that I was under a lot of stress the day of the injury and had been repeatedly bending over to use my office couch as a desk, for 2 days straight, 8 hour shifts, minus one hour for lunch. I was conducting a great deal of work in poor conditions. I told him these details, but he was not paying attention to what I was saying. His report states that my injuries aren’t consistent with “looking at a piece of paper” he does not bother to mention that I was repeatedly bending over to work on files, that were laid out on a couch, because my broken office chair was not high enough to work at the desk. The next paragraphs further explain issues I have with that doctor. B) The QME report does state that my industrial injury was a neck sprain, yet the QME is claiming that I was adequately treated. I believe he’s making that assumption because of how long it’s been since the i

Nancy J Wallace

Nancy J Wallace

Posted

Makes you look angry and not hurt; 100% counter-productive.

Posted

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.

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Asker

Posted

Thanks for your response. I did not know how bad it was to see a random QME, I wish I had known how all of this works earlier. Of course my adjuster didn't inform me of much, she encouraged me to get the QME and said she would select one for me if I didn't choose. I kind of felt like my arm was twisted (so to speak). Anyways, his report does say that he didn't have all of the information (no xrays, no MRI, just reports made by other doctors) it says he reserves the right to re-evaluate if the MRI's/xrays are sent to him to review. In the last couple of days I have learned that this QME does this exact thing with all of the patients he see's. I feel that any review from him will be the same. However, I never had a physicians report, I'd like to know if I am legally entitled to have a physicians report. Also, I want to take every legal step possible before it is too late, so if it's possible to appeal I'd like to know if you can take my case. I have my QME report scanned to the computer and can email it to any attorney willing to consider my case. Thanks

Brett A. Borah

Brett A. Borah

Posted

As I said before, you cannot do this alone. You need an attorney. Get one NOW!

Asker

Posted

I absolutely understand what you're saying, I know I need an attorney before I make a bigger mess out of this situation. Problem: all of the local attorney's I've spoken to have told me my hands are tied due to having done the QME. They told me that theoretically I can change the situation by getting a treating physicians report, but that they will not be able to help me with my case. That's why I sought out this website, because I was hoping to find an attorney who specializes in cases like mine. I sure wish I would have called an attorney before the QME, local attorneys have informed me that the Dr I chose was the worse choice in town. I can't change what I did, but I'm hoping to change this situation. Your post says I can call you for a referral? I'll give you a call this week, I'm currently waiting to see if my claims adjuster sends me anything about my QME, she's not returning my calls, so I anticipate that she plans to communicate in writing. Thanks

Asker

Posted

OK, I've sent a demand letter and I have almost completed a request for a new panel. I give the following reasons: #15: my basis for it is the QME's own statement "I did not have the xray/mri's to evaluate myself, therefore I reserve the right to re-evaluate upon receipt of those records." Then I also selected the box to change the specialty, and I am attempting to enclose a Dr's note (from my original treating physician) that refers to pain management needs. The request requires the original panel #, where do I find that? On a side note, this situation has brought something else to light. The QME says that my back, arms, and leg pain is in no way connected to my neck injury. I had a back injury a little over a year ago, it was on the job, a workers comp claim was filed. I saw a Dr the same day of the injury, XRAY found nothing wrong with my back, even though I had a lot of pain with numbness in my legs. The Dr chalked it up to a possible sprain, or possibly related to my neck. The workers comp claim on my back was closed. My back pain has always been a bigger problem than my neck, now that I'm told it's not due to my neck injury, I'd like information about re-opening that? Thank you all for being so available for questions:)

Posted

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 state before you RELY upon any legal advice.

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Posted

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 FOR EDUCATIONAL PURPOSES ONLY AS WELL AS TO GIVE YOU GENERAL INFORMATION AND A GENERAL UNDERSTANDING OF THE LAW, NOT TO PROVIDE SPECIFIC LEGAL ADVICE. BY USING THIS WEBSITE AND/OR RECEIVING EMAILS OR OTHER COMMUNICATIONS AS A RESULT OF THIS WEBSITE, YOU UNDERSTAND THAT THERE IS NO ATTORNEY-CLIENT RELATIONSHIP BETWEEN YOU AND MITCHELL & POWELL A P.L.C., THE WEBSITE PUBLISHER, OR ANY AUTHOR OF ANY WORK ON THE WEBSITE. THE WEBSITE SHOULD NOT BE USED AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE FROM A LICENSED, PROFESSIONAL ATTORNEY IN YOUR STATE. THE ATTORNEYS OF MITCHELL & POWELL A P.L.C. ARE LICENSED IN THE STATE OF CALIFORNIA ONLY.

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Brett A. Borah

Brett A. Borah

Posted

Darin: That's an awful lot of technical stuff for this Applicant to do and get right. He's already picked a bad PQME. I'd rather see him get to a good WC attorney now before anything else goes wrong. The more the attorney has to fix, the fewer avenues left open to him, the less likely he's going to be to take the case. I'd recommend talking to an attorney now.

Darin Laine Powell

Darin Laine Powell

Posted

100% Agree, Mr. Borah. I don't know if these people want to see some of what you and I consider, that is why I threw that out there. I also wanted to give a compete answer - just probably overdid it as I tend to do. I do agree, though, get a WC attorney ASAP and maybe that person can fix the damage that is set in motion. dp

Asker

Posted

A QME in Santa Maria, California use to see his patients on his couch in his garage "turned into a psyche office". Before his death at the age of 85, he was still seeing patients and writing reports the Insurance companies paid for. Dr. C never wrote a favorable report for a injured worker's QME report. Injured workers wanting to skate on the attorney's fee will end up on a couch, with a unfavorable opinion like I did. My attorney was able to have this report thrown out, he discredited the QME as the paid liar he was. Companies are telling their employees they don't need a lawyer and the employee will get more money because they don't have to share their settlement.

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