WCAB Says QMEs Can Comment on Conditions outside Specialty

Published on April 16, 2014 by WorkCompCentral, authored by Sherri Okamoto

A qualified medical evaluator is not limited to commenting solely on impairments that fall within the scope of treatment for his medical specialty, according to a panel decision by the California Workers' Compensation Appeals Board. 

A WCAB panel last month accepted and adopted a decision by Workers' Compensation Judge Rosa Moran holding that a chiropractic QME could and should address all the impairments ratings that most accurately reflected Victor Tallent's medical condition, which included neurological and sensory problems, a sleep disorder and chronic pain complaints.

The case was Tallent v. Infinite Resources, No. ADJ7756026.

Tallent had worked as a mechanic for Infinite Resources. He injured his neck and back in June 2008 while carrying a heavy piece of metal at work. 

In December 2008, Tallent and his employer selected Justin Frieders, a doctor of chiropractic, to serve as the QME for Tallent's workers' compensation claim. Frieders opined that Tallent needed to see an orthopedist, a neurologist and a psychologist. He later underwent two multilevel cervical fusions.

Moran found that the consequences of Tallent's injury and surgeries were "devastating," leaving him with significant functional limitations and suffering from chronic pain and depression.

The doctor who performed Tallent's surgeries determined that his condition became permanent and stationary in February 2012, but did not provide a permanent disability rating.

Frieders then provided report detailing the extent of Tallent's disability, which included opinions on his future medical needs for his neurological and sensory disorders, chronic pain, scarring and medicine usage.

The attorney for Infinite Resources challenged Frieders' report, contending the doctor could comment only on the conditions contained within the American Medical Association's Guides to the Evaluation of Permanent Impairment that would fall within the scope of treatment for a chiropractor. 

Counsel for Tallent countered that Frieders, as a licensed QME, could properly discuss any section with the AMA Guides.

Moran agreed with Tallent. She noted that all QMEs receive formal training on how to use the AMA Guides in preparing evaluation reports, and opined that Frieders could "accurately describe impairment factors that are consistent with the medical record and fall within the four corners of the AMA Guides."

Moran emphasized that evaluating doctors are obligated to use any section of the AMA Guides to provide an opinion on impairment that most accurately describes the applicant's condition. Because of this, she reasoned that some evaluators will have to use areas of the guides that are not specifically within their area of practice. 

"To bar a licensed QME from use of certain sections of the AMA Guides solely because he is a chiropractic practitioner would be discriminatory and in direct conflict with case law interpretations that an injured worker is due the most accurate depiction within the guidelines of their impairment," Moran said. 

 Moran suggested that the defense had "misfocused" on Frieders' medical specialty since he was not providing treatment outside the scope of his licensee, nor was he opining on causation.

All Frieders had to do was decide which sections of the AMA Guides most accurately described Tallent's impairment, as documented by the medical record, Moran said. The end result, she found, was "a thorough and accurate impairment rating" that took the entire medical record into account, and was supported by the range-of-motion measurements and physical exam notes by Tallent's treating doctors.

Infinite Resources petitioned the WCAB for reconsideration, but a panel comprised of Deputy Rick Dietrich, Chairwoman Ronnie Caplane, and Commissioner Frank Brass denied the petition on March 19. 

Melanie Ogren of Hanna, Brophy, MacLean, McAleer & Jensen filed the petition on behalf of Infinite Resources. She declined to comment on the panel's decision Tuesday. 

James Vandersloot of Larson, Vandersloot & Rivers represented Tallent.

He said Tuesday that he has not heard whether Infinite Resources will seek review in the 1st District Court of Appeal, but there is still time for the company to do so. 

Vandersloot said he felt a chiropractic QME was "fully qualified to address all the factors of disability." 

He conceded that perhaps a chiropractor could not properly discuss the cause of the disability, but in Tallent's case, the QME was relying on the opinion of specialists for causation, and there was no challenge to those opinions. 

Vandersloot posited that it would be a "dreadfully tedious process" if litigants had to get different QMEs to comment on the impairment caused by all the different conditions a worker may have. It would also make the cost of litigating claims "rise dramatically," and frustrate the goal of providing prompt dispositions, he added. 

Jim Butler, president of the California Applicants' Attorneys Association, agreed that the Tallent decision "gives an injured worker an option, rather than risking a denial to a second QME panel in a different specialty," and provides "another way forward to obtain expeditious evaluations, particularly if QME panel assignments are backlogged."

Dr. Eric Mumbauer, chairman of the California Chiropractic Association Insurance and Industrial Relations Department, said he thought the Tallent case provided a "great opinion," but he cautioned that it basically has no precedential value since it was a denial of reconsideration.

Still, he said the issue was an interesting one and potentially relevant to a broad number of cases. 

In workers' compensation cases, Mumbauer  observed, not every applicant has an injury that is limited to one area of the body, or within one medical specialty. So it's not just chiropractic QMEs who are sometimes called on to comment on conditions outside their treatment areas.

"Regardless of whether you're a chiropractor or osteopath or psychologist, we've all been trained on the same book for assigning impairment," he contended, so a party "should not be able to deny a doctor of chiropractic the ability to do a QME report if the chiropractor is certified by the state as a QME." 

As long as the chiropractor is a QME, Mumbauer said there is no reason that the chiropractor's opinion should not "hold just as much weight as an orthopedist, neurologist or psychologist." 

Applicant attorney Michael Win of Rowen, Gurvey & Win said Tuesday that the comp scheme allows any QME to assign impairments ratings to any condition, as long as the QME consulted with specialists who would treat those conditions and incorporated their opinions. This, he said, is "one of the duties of a QME." 

His firm colleague, Alan Gurvey, suggested that "common sense" dictates that when a condition is within the scope of the QME's practice, the QME ought to be able to comment on it. 

"However, if it is beyond the scope of the doctor's practice," Gurvey said that shouldn't mean the QME can't comment. Rather, he concurred with Win that the appropriate thing would be for the QME to incorporate other practitioners' opinions and agree with them, defer to them, or indicate the QME's disagreement with them, and the basis for that disagreement. 

Defense attorney Gregory Grinberg, who discusses the Tallent case on his blog, said he had to wonder at what point a chiropractic QME could feel qualified in disagreeing with a neurosurgeon or psychologist as to findings, treatment, or causation. 

Fellow defense attorney Tim Kinsey, of Grancell, Stander, Reubens, Thomas & Kinsey, said the Tallent case leaves him questioning why QMEs are available in multiple specialties if a QME can comment on impairment from conditions outside his speciality. He said he would not be comfortable with the idea of a QME, especially one who is not a medical doctor, commenting on the effects of multiple surgeries or modalities of treatment that the QME has never performed or been licensed to perform or prescribe.

Kinsey added that he has seen reports from QMEs indicating that the QMEs were unable to comment on impairment in specialties outside of their respective fields, and he has seen parties use such statements as the basis to obtain new QME panels. 

San Diego-based applicant attorney John Don opined that "at the end of the day," it doesn't matter who the QME was, or what the QME's specialty was. All that matters is whether the QME's opinion constitutes substantial medical evidence. 

"If it makes sense -- it makes sense -- no matter what acronym is at the end of the QME's name," he said.