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June - July 2016


One of the critical stages in workers’ compensation litigation is the medical-legal evaluation.  Yet many defense practitioners still send their medical records to the physician with the “cover letter.”  At most, the cover letter will contain excerpts of the apportionment sections of the Labor Code and ask the evaluator what he thinks.  Alternatively, the drafter of the cover letter will exhaustively review the entire treatment history notwithstanding that the best qualified reviewers are the medical-legal evaluator themselves.

What the medical-legal evaluator needs is a bridge between the medical history and its legal import.  The attorney needs to set out his or her legal theory and then point to specific facts in the record that support that theory.  Because there are a lot of evaluators who are inexperienced, in a hurry, or have their own preconceptions, it is important to provide citations to the medical records with at least the same specificity as citations to the record in a legal brief to the Court of Appeal.  In other words, give the reviewer the record set, page number, and paragraph number.  Spoon feeding the doctor is not inappropriate.  As the physician reads your argument and then easily goes to the citation in the record that supports it; he can be persuaded.  With each accurately summarized fact the trust builds between the attorney and the evaluator.

It is important that your argument does not overstate the case.  It is important not to insult the injured worker.  If you firmly believe the injured worker is malingering, do not call him a malingerer, but point to the parts of the record which show that this person is intentionally magnifying his disability and let the physician draw the conclusion that he is trying to get out of work and let the evaluator put the name “malingerer” on it.

There are many misconceptions that still exist even among AME’s with respect to apportionment to “causation.”  I think the applicant’s bar has persuaded the AME’s and QME’s that if a pre-existing pathology was not likely to have caused disability by itself, it is “speculative” to say it is part of causation of the current disability.  I think the Applicant’s bar has persuaded a large number of panel QME’s that if they cannot separate the influence of two injuries on a particular disability with near mathematical certainty, it is then speculative.  I think the applicant’s bar has persuaded a large number of our QME’s that “inextricably intertwined” is the rule when considering the influence of two injuries on a disability rather than the exception as the Benson case intended.

With reasonable caseloads and extensive experience in medical issues, Schmit Law Office is able to devote the time and effort necessary to build the adequate case for favorable medical-legal results.  One prominent AME congratulated the firm for its “detailed and compelling scholarship… which is literally “impossible to avoid.  In 25 years of practice this is one of the most well researched requests for a supplement that I have ever received.”

by David Schmit, Schmit Law Office



Many practitioners advise their clients to obtain CMS approval of a proposed MSA whenever the applicant is either a Medicare beneficiary or is reasonably expected to become a Medicare beneficiary within 30 months of the settlement date.  This may sound unnecessary as a Compromise and Release can technically be approved even if the parties fail to obtain CMS approval.  However, one of the primary responsibilities of an attorney is to minimize unnecessary risks for their clients – and this includes risks that may arise years after the settlement documents are finalized.

There are serious consequences if the parties agree to a settlement without obtaining CMS approval.  Since CMS has not approved the MSA, it is not bound by the amount stipulated and it may refuse to pay for future claim-related medical expenses, even if those expenses would normally be covered by Medicare.  Moreover, federal law allows the United States to collect double damages for reimbursement of conditional payments from any entity (including the employer and the third party administrator) that is responsible for such payments.  (42 U.S.C. §1395y(b)(2)(B)(iii))

The recent case of Alvarenga v. Scope Industries illustrates the importance of obtaining CMS approval.  In Alvarenga, the defendant filed a Petition to Set Aside the Order Approving Compromise and Release, which included a $24,079.23 MSA that was not submitted to CMS.  The defendant argued that the Order should be set aside due to a “mutual mistake of fact” because the parties were mistaken as to whether the MSA required CMS approval.  The Board rejected this argument because there was no actual mistake; CMS approval of a proposed MSA amount is not required.

The Board did ultimately rescind the Order due to other flaws in the Compromise and Release.  It is important to note, however, that if the only basis for rescinding the Order was the parties’ failure to obtain CMS approval, the Order would have remained in effect.  This means the defendants would have been responsible for paying applicant the $24,079.23 settlement and would still be subject to future claim-related medical expenses and liability to the federal government.

Of course, this does not mean that every single MSA should, without question, be submitted for CMS approval.  In some cases, CMS approval may be completely unnecessary.  However, it is important to remember that failure to obtain CMS approval can subject both the employer and the third-party administrator to substantial liability long after the file has been closed.

by Lisa Omoto, Schmit Law Office



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