To Litigate? Or to Split? That is the Question
Some of the most commonly litigated issues in Workers’ Compensation include degree of temporary disability and permanency (classification or schedule loss of use). More often than not, treating doctors and IMEs do not agree on issues concerning degree of disability or schedule loss of use. The question then arises as to whether the parties should litigate the issue through depositions of the doctors, or whether attempts should be made to negotiate a “split” of the disability rate or SLU award.
Defense counsels often genuinely enjoy grilling treating physicians on issues of causal relationship, degree of disability, work capacity, permanency, etc. However, there are times when it is advisable to forego litigation and attempt a reasonable resolution with opposing counsel of the outstanding issues. Identifying the cases where litigation would be beneficial can be tricky, and requires not only a careful review of the record, but also a working knowledge of the different “players” by the attorney handling the case — including the treating doctors, IMEs, opposing counsel, and presiding Law Judge. The attorney will evaluate the strengths and weaknesses of each doctor’s opinion, each doctor’s likely performance under cross-examination, the risks of allowing opposing counsel the opportunity to question their client’s doctor and the carrier’s IME, and the disposition of the particular judge presiding over the case. Some claimant’s attorneys can be so difficult to negotiate with that litigation may be the only option.
Some claimant’s attorneys can be so difficult to negotiate with that litigation may be the only option. For example, if the treating physician is well known for finding his/her patients incapable of work under any set of circumstances, but generally cannot support that opinion under cross-examination, then litigation is likely to be beneficial. By the same token, if the IME is known to crumble under cross-examination, or has not provided a strong opinion supported by the medical evidence, then it is wise to attempt a reasonable negotiation in lieu of litigation.
Another significant factor to consider is the likelihood of whether the treating physician has ever personally seen and examined the claimant. If it is clear from the medical records that the treating physician has had very limited involvement with the claimant, litigation can be a useful tool to draw doubt upon that doctor’s credibility. In one example, we recently cross-examined a treating physician who purportedly had treated the claimant for the work-related injury for years. However, upon questioning the doctor, he acknowledged that he had never met the claimant, and would not be able to pick her out of a line-up. All treatment, examinations and medical reports had been the work of a nurse practitioner.
With regard to schedule loss of use, a careful comparison of the medical records is advised, in order to determine whether range of motion has been consistent in examinations performed leading up the permanency evaluation. If the recorded range of motion differs drastically from prior medical and physical therapy reports, then depositions are advised in order to call into question the validity of the SLU opinion. Additionally, a careful review of the Board’s Permanency Guidelines is advised — in order to determine whether each doctor’s opinion is in accordance with those Guidelines. If both physicians followed the Guidelines and the opinions are fairly close together, negotiating a split of the opinions is generally recommended. However, if the treating physician failed to follow the Guidelines, or is clearly unaware that the Guidelines even exist, subjecting that doctor to cross-examination will likely yield a favorable result for the carrier.
Depositions can be like a box of chocolates — you never know for certain what you’re going to get. While there are risks with deposing a treating physician or IME, there are circumstances where the risk is worth taking. For example, a treating physician who has kept a claimant out of work on total disability for an extended period of time is unlikely to be able to support that opinion under cross-examination. Keep in mind that the issue of labor market attachment cannot be raised or pursued until the record contains no opinions of total disability. As such, for a claimant who has been avoiding the task of looking for work while under the protective umbrella of a treating provider who rubber-stamps their reports with total disability, setting the case down for litigation is generally recommended.