Excerpted from the SEAK DVD Training Seminar: How to Excel as an Expert Witness in Workers’ Compensation Cases: Special Techniques
-The biggest mistake that I see all the time which messes up the doctors is they don’t, in their report, provide a detailed explanation of how the rating was performed. Okay? So, this is the way it usually goes. “I prefer him the impairment rating of the sixth edition based upon my examination. And my impairment rating the person has a 6% permanent impairment rating.” “Okay? How did you get to the 6%?” When you ask the doctor deposition, then they fumble and bumble. “Well, based on my education experience, it’s 6%.” “How did you get the 6%?” “Well, if I had the book here I could tell you.” “Well, here’s the book, doctor. Fortunately, I brought it along. Show me how you did your impairment rating?” “Well, it’s a very complex situation.” “Yeah. That’s why you’re getting paid the big bucks. Show me how you did it, doctor.” And they can show you. Okay. I don’t know who did it or how they did it. Nobody knows. And that’s never going to fly. So, the doctors that are adept at this, put the rating in the report. They say, “This is how I did it.” I think there’s an example here. “This is how I arrived at the impairment rating.” Some of them are pretty complex. But if you have that in your report when they take your deposition or a trial testimony and they asked you how you are arrived at this, they say, “I’m going to refer to my report, council.” And then you prefer to report and tell them chapter and verse how you did it. “How I did is like, on page 23 of my report, I did this, I did that, used that chart, used this chart, used this table, used this page, whatever, whatever, whatever, I combined, I edit, and so on and so forth. And 6%.” Okay? So, that makes it a hell of a lot easier than just saying 6% and then not being able to defend it, because your report and your testimony is of no value if you can’t explain it and defend it just like the judge is saying, “How? How did you get there? Why did you do it that way?” So, this is an important point. And by the way, if you don’t know how to do impairment ratings, just tell the client, “I don’t do impairment ratings.” Don’t just make something up because that’s not going to fly. You just can’t turn to page 23, look up the shoulders and say, “Shoulder is 6%,” because there’s six other chapters that relate to that. Okay? It’s all interrelated. So, my suggestion is get some training if you’re going to do impairment ratings. Questions about that. Judge, while we get this, I assume that you see impairment ratings like this kind of thing, like…
-I do, yeap.
– What kind of things do you see there?
– This sounds really simple and almost silly, but I find sometimes that practitioners don’t actually read the rule. So, in the jurisdiction, I am on the bench and we have, for instance, it’ll say for neck or back conditions. There needs to be objective findings on a CT or MRI. Okay. That’s pretty basic. But then also ongoing substantiated objective findings, like, reduced range of motion, muscle spasm, etc. And so I get the rating where it says, “Well, 3.5% under whatever the rule is,” but no explanation. And then I’m looking at the medical records that I have and I’m not really seeing reduced range of motion or I’m not seeing persistent muscle spasms. So, if the rule requires whatever the three prongs are, make sure that, one, you know what those three prongs are, the threshold is, and that from my perspective, I appreciate somebody saying, “Look, you’ll see it from Dr. so and so’s records on examination. There’s persistent reduced range of motion or you will see on examination there’s persistent muscle spasm,” because I need all those parts to actually assess or award the ratings. So, that’s, I guess, the biggest thing that I see that there are parts missing that don’t substantiate the rating that’s actually given.
-Right. And the other thing is which we’re going to get to in a minute, I think is tell us which edition of the guide you used. Very often the doctor don’t say which edition they use, which becomes extremely important especially if you want to get it right. And using the right edition, if not, this is a big problem right there. And again, as all the test… As we talked about this all day long, you’re in a medical-legal environment, now, right? Half of it is medicine, half of it is the law. So, you’re applying the medicine to the law. So, if you don’t know the law and how it’s to be applied, your opinions are problematic because you’re not applying it to the law. So, if the law says you need three things, then you need to tell us if you have the three things or not. If you don’t say that, then we don’t know that, and then you can get questioned about it. And again, as I said before, the better your report, the easier it is for you to testify because it’s all in the report. Okay? You don’t want to have to on the fly try to testify about how you did an impairment rating that’s not written down because that could be very, very difficult and most doctors can’t do it.