One of the most pernicious strategies for defeating your disability-retirement claim, is the use of doctors who routinely make their living writing med‑legal reports for the defense industry. And we’re not talking about doctors who are customarily used as “tiebreakers” – the Agreed Medical Examiners (AME) because they are jointly selected to render a neutral opinion. We’re talking about the Retirement Systems use of the most “die‑hard” defense doctors.
Typically, an employee is injured on the job and sees a treating doctor. Once s/he has stabilized medically, the treating doctor will prepare a report specifying what work restrictions exist. At this point the employer usually obtains a medical opinion from a doctor of its choosing -- a defense doctor. If the defense doctor agrees that you are ready for rating, that doctor will offer his/her opinion to the employer. These two doctors, work restriction opinions can vary from total agreement to total disagreement.
Up to this point, each of the two physicians has been picked by one of the contending parties. If the two expert opinions diverge significantly, often the parties jointly select a third physician – the Agreed Medical Examiner (AME).
Returning to our typical scenario, you now have three physician opinions. Suppose that the AME agrees with your physician – that you are permanently restricted from performing the essential duties of your job and that your employment helped cause that disability. If your employer accepts the AME’s opinion you will likely be advised that the employer has no available modified work for you. Thereafter, either your employer or you will file for a disability retirement.
Now the retirement system has a disability-retirement claim where the treating doctor, the AME and even the employer have all agreed that you cannot perform the essential functions of your job. Does that mean that a disability retirement will be granted? No, not necessarily. So how does the retirement system support denying such a claim?
The stratagem is disarmingly simple. The retirement system claims the right to send you for a medical examination by a doctor of its choosing. And if you request that this new examination be performed by an AME type physician, that request will nearly always be denied. Instead, your retirement system will send you to a defense doctor, one who makes their living writing defense-oriented reports.
Once your retirement system has this new defense medical report, it will rely on that report to either deny that you are disabled or, if disabled, deny that your employment had anything to do with the disability. Your retirement system will deny the application and inform you that you can ask for a full administrative hearing. But At that hearing, your retirement system appear as your opponent, it will rely on its defense doctor’s opinion, and will also reach back into the employer’s file and resurrect the first defense medical even though the employer abandoned that report and substituted the opinion of an AME.
This has happened to hundreds, probably thousands, of public employees seeking disability retirement. We hear from employees how woefully inadequate the retirement-system’s medical examinations were conducted. Often we hear that the retirement-system’s doctor fabricated tests and test results. Or the doctor conducted the examination like a deposition insisting that the patient answer the doctor’s questions with either a “yes” or a “no” without the ability to explain the circumstances. It is not unusual for the doctor to spend only five or ten minutes with the patient before producing a twenty to forty‑page report that makes it appear that the doctor engaged in an exhaustive examination.
Your complaints to the retirement systems will be unsuccessful. After all, the pension system selected the defense doctor. The pension system representative knew what they were doing. A defense doctor“wash out” opinion was expected.
Now, however, the California State Attorney General has issued an opinion saying that a physician who knowingly provides false or misleading expert witness testimony can be subject to professional discipline by the California Medical Board. If you believe that the retirement board physician(s) has given false or misleading statements about your claim, you can now file a complaint directly against the offending physician. The form for filing such a complaint is found at http://www.medbd.ca.gov/ccicufrm.pdf.
If you file such a complaint, we would like to hear about it. You could send a copy of the complaint to us and we will keep the information private while simultaneously being able to report that complaints are being made. If enough injured workers refuse to accept false and misleading statements, the retirement systems will be under pressure to use physicians who adhere to an acceptable standard of professional performance.