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Thread Title: QME ... Aubrey Swartz MD
Created On Friday April 15, 2005 9:37 AM

Mickey
Junior Member

Posts: 2
Joined: Apr 2005

Friday April 15, 2005 9:37 AM

Has anyone had any experience with this doctor? He is a QME with offices in a number of states.

I saw him for my AOE/COE evaluation ... he was chosen, of course, by the defense. I was initially surprised at this choice. The examiner told me on the telephone that since she was not in Sacramento, she would use a doctor from one of the commonly used "groups." I had also heard he had a reputation of being applicant oriented. From my experience, that is apparently no longer true.

The examination was extremely short and in my opinion, incomplete ... with no testing typically associated with a rotator cuff injury complaint (these tests are easily found by searching the internet or asking a doctor). He was distracted, jumped in and out of the examining room as he examined other patients at the same time, and totally downplayed it when i showed him a specific loss of range of motion. At one point he openly scoffed when I described a complaint.

His report had a number of inconsistencies and inaccuracies and needless to say, found no industrial injury. My claim was denied based on Dr. Swartz' reporting

My rebuttal examination with a shoulder specialist (Swartz is not a specialist) found just the opposite.

As a result of a trial (a year later) a Findings and Award was issued and my claim was accepted. The WCJ noted in his Order "...and so Dr. Swartz' report, especially his findings, are rejected as being outright untruthful. (A copy of the Minutes of Hearing and this Opinion on Decision will be reported to the Office of the Administrative Director.)"

In searching the internet, I found a published court document, JOAN HANGARTER,. Plaintiff,. v. THE PAUL REVERE LIFE INSURANCE CO, in which Dr. Swartz acted as the defense doctor. Ms. Hangarter was awarded over $7 million dollars ... $5 million being punitive damages (this was a workers' compensation case of a self-employed chiropractor) ... and Dr. Swartz was specifically named as being a biased examiner ... in more than just this case. And in responding to the appeal, the judge again named Dr. Swartz as being part of the reason for denying the appeal.

Almost two years after my date of injury, I am finally getting treatment based on an MRI showing rotator cuff tears.

Dr. Swartz' reporting on my injury has not only caused me continued pain and aggravation, he cost the insurance company (who had to know his rep ... wouldn't you think?) a heck of a lot of money ... not only in retroactive and ongoing benefits, but in legal fees, interest and penalties, etc. ... and they have a two year old claim still on their books! Had they used a different doctor and accepted my claim (BTW I had two prior injuries to the same shoulder that were accepted), I would bet I would have been treated and finished within about six months ... even with surgery (which is now looming in my future).

When you're referred to a QME, do your homework ... ask questions (your treating physician and the Information and Assistance Office are good places to start), search the internet (physician licensing, associations, authored papers, court records, etc.) ... and know who you're seeing before you go so you know what you're getting into. If it's a Panel QME doctor and you don't like what you've found, choose another one. If none on the Panel suit you, request another panel. You might be "stuck" if the doctor is for AOE/COE or another defense exam, but you could try to object and request another doctor. Even if you're "stuck" though, you can go prepared with questions for the doctor if he doesn't do an examination you're expecting ... and there are provisions for getting rebuttal reports.

It is important to let the Office of the Administrative Director know about questionable conduct of a QME. These doctors should not be allowed to practice as they do. They hurt the injured workers, the insurance companies and the entire workers' compensation system ... including the employers who have to pay the ever increasing premiums.

-------------------------
Mickey

Edited: Saturday April 16, 2005 at 6:40 AM by Mickey

Posts: 34
Joined: Apr 2005

Saturday April 23, 2005 6:21 PM

this is why it is necessary to AUDIO-TAPE MEDICAL EXAMS!!! under CCP SEC 2032(G) and Vinson v. Superior Court (1987) you can tape medical exams and or also have a representative present who can tape-record. i have been doing this for a few years now.TextText i am new to this board and glad to be here.

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bukowski01
Senior Member

Posts: 205
Joined: Mar 2005

Thursday June 30, 2005 9:49 AM

FYI you have 10 days to pick your QME from the date that the IMC issues the panel. If you did not and you were sent the info regarding this, then you have nothing to complain about.

BUT.... If your I/C failed to provide you with the QME info you might be able to obtain a new QME

As many others have said before, if you tape your QME appointments your only going to be worse in the end.

Posts: 93
Joined: Mar 2005

Thursday June 30, 2005 8:35 PM

bukowski,

why is it worse in the end if an IW tapes a QME? it is legal to do so, and the QME records it and hs a witness/assistant, so why can't the IW?
I haven't seen anything in these posts to the contrary, so maybe you can explain what you mean please.

WTP

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art
Senior Member

Posts: 2111
Joined: Aug 2004

Thursday June 30, 2005 9:15 PM

wtp,

I've no opinion one way or another on this but there was some discussion here some months back and there were legitimate points on both sides.

The main reason some thought it was a bad idea is that it immediately implies some level of distrust and/or suspicion on the part of the IW towards the examiner. Granted they maybe should be appreciative of the situation the IW is in, but people are still people and I find it understandable why a doc may not appreciate being recorded. One can always say "Well if they've nothing to hide, why should they care?". Fair enough. Now turn that around and aim it at an IW. I've got nothing to hide but I sure as He-- have trouble with being told my exam is to be taped!

You are allowed to terminate any exam if you feel the questions or techniques are sufficiently inappropriate. If it's a DQME exam and the report is problematical then you've your QME and your own PTP reports to rebutt it. At the end of the day you're the only one who'll have to live with the consequences of your own actions so the decision is of course entirely yours to make. Just make sure you've weighed the consequences after considering both sides of the coin.

Additionally, since audio tape is so easily editable there are questions about both admissibility and/or credibility.

Does this help at all?

G' Luck...

Posts: 93
Joined: Mar 2005

Thursday June 30, 2005 9:56 PM

Art,

yes I see what you are saying, I also would like to point out that yes there is some distrust on the part of the IW to the DQME if that QME has acted unprofessionally and unethically in the past with the IW and went so far as to physically hurt the IW, in that situation one could see the IW wanting to use anything to prevent anything else possibly happening.

Again, the QME has an assistant and records his "exam notes", what makes it ok for the QME and not the IW?

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art
Senior Member

Posts: 2111
Joined: Aug 2004

Thursday June 30, 2005 10:21 PM

wtp,

"...I also would like to point out that yes there is some distrust on the part of the IW to the DQME if that QME has acted unprofessionally and unethically in the past with the IW and went so far as to physically hurt the IW, in that situation one could see the IW wanting to use anything to prevent anything else possibly happening."-- You are allowed to terminate any exam if you feel the questions or techniques are sufficiently inappropriate. A witness who can testify would be more useful than an audio recording.

"Again, the QME has an assistant (and you've your witness) and records his "exam notes" (which is used to dictate the report not record you), what makes it ok for the QME and not the IW?-- Feel free to record your own verbal notes. From your comment it doesn't sound as if he's recording the entire exam, just dictating for his report. In that scenario the tapes are not intended to be presented into evidence as you implied would be the purpose of your recording.

If the DQME's resulting report is so prejudiced then it won't be given much, if any, credibility. The judges know who the paid hacks are and can see a report for the hatchet job it is. This damages the defense's case, not yours.

I'm not trying to dismiss your concerns, only trying to suggest a better way to address them. On the other hand, if he were to get really torqued by you recording everything, his emotions might get the best of him and he may write an even more egregious report that was so over the top that it would be dismissed outright. Who knows...

Hang in there...

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art
Senior Member

Posts: 2111
Joined: Aug 2004

Friday July 01, 2005 3:17 PM

wtp,

50cal5 posted this in another thread. Thought you'd find it relevent.
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By the way, just for fun did you know that you are allowed to have a court report or a tape recorder at a medical evaluation? Well you are, but at your own expense (see Fireman's Fund v. WCAB, 45CCC37 and Brewer v. WCAB, 51CCC190).

Now let me say one more thing ... Do you have any idea what a judge will think of you should you have a court reporter or tape recorder in his/her courtroom? Although it legally is allowed, I sure wouldn't want to be in your shoes because that would be considered an extreme insult to the judge. Here you are in court asking a judge to rule in your favor and you insult him by having a court reporter present.

----------------------------------------------------------------------------

Very similar to the possible perception/reaction of the doctor!

Later...

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Mickey
Junior Member

Posts: 2
Joined: Apr 2005

Friday July 22, 2005 10:24 AM

THIS WAS AN AOE/COE EVALUATION ... I HAD NO CHOICE. THIS WAS NOT A QME EVALUATION.

-------------------------
Mickey

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republic1
Junior Member

Posts: 2
Joined: Jul 2005

Saturday July 23, 2005 8:25 AM

you may also want to file a complaint with the AD director - find out malpractice information from this doctor - make notes of all exaiminations during the examination - to be intorduced at trial and to file your complaint.

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tjfujii@scif.com
Member

Posts: 77
Joined: Dec 2002

Saturday July 23, 2005 9:58 AM

There is an aspect to all of this that you may wish to consider. The more you fuss and fume and tape and complain, the more the professionals responsible on all sides of your case will start to see you as a crackpot. Seriously. it's not just the IC that will begin to think this way, your attorney, the doctors, the judge him/herself will begin to become very annoyed with you and your constant complaints and suspicions. This is because what is for you a new and fantastic situation, is for the rest of us simply our day to day jobs. We're here every day, dealing with thousands of cases, year after year, and yours is just one of them. If you tick everyone off, whereever there is a situation that could go a way that is easier for you or harder, guess which way everyone is going to go? And I can't tell you how many times an app attorney with a contentious client has called me up and basically said the client is obnoxious and difficult and let's just settle the thing and get rid of him. And that attorney, although still fighting for his client, isn't fighting very hard at that point, and isn't arguing for much settlement money either. They just want the client gone.

This affects judges too - although the app attorney usually shields the judge from the cranky client as much as possible and tries to avoid going to trial. When you're in pro per though, it's just you. And although you have a right to represent yourself and the system is supposed to be informal enough for an IW to deal with without the need for any attorney, it is in fact very complex and nuanced and difficult to wade through intelligently without the proper background. There is nothing more tiresome than someone with just enough knowledge to be dangerous grinding the entire process to an agonizing crawl.

So, attitude becomes everything. If you're going to do things that slow things down and stop the usual flow of the system from the point of view of the professionals in the system, then it is important to present yourself properly while doing that. If you appear to be an angry cranky irritable crackpot, those professionals will dismiss you as mentally challenged and possibly gaming the system and that will color their decisions about how to handle your case, the judge included. If you appear to be sincere and honest and respectful while still expressing your rights, the professionals will still be annoyed that you're slowing things down or making their jobs more difficult, but they won't necessarily feel ill will toward you. And that can make a big difference in how things go for you.

I'll give you an example. A stipulation or findings and award comes out for a substantial amount of money, and the applicant is being evicted and really needs the money. So he calls up and explains the situation and asks nicely if we can get that money out to him asap. He's sincere, he's not obnoxious or demeaning or shouting his rights, he's asking for consideration. And although the money won't actually be considered unreasonably late for another 18 days, and the adjuster has a million things to do right now, and the case is complicated and the award is difficult to pay (I won't explain that last part, but awards can be very time consuming and difficult to pay much of the time), the adjuster will usually do what they can and process the thing as soon as possible. They can put themselves in the applicant's place and sympathize and they'll do it.

Now, give the same situation with an applicant who is obnoxious and appears unreasonable and fights you tooth and nail over every little thing and has just been very difficult all around to deal with. Not feeling the love there, and not going to go out of the way to make things happen quicker for that applicant. It's not a revenge scenario, it's a why bother? scenario.

Think of it as a kind of karmic retribution of the work comp system. You put in negative energy, you'll get negative energy thrown right back at you. And this applies to every professional every step of the way - the treating doctor, the QME, the AME, the app attorney, the adjuster, and the judge. Your credibility is very important when you are litigating anything, so be careful how you are perceived. That doesn't mean you shouldn't stand up for yourself, or that you shouldn't try to gain knowledge and make informed choices in this matter, but just don't forget how to present yourself while doing it.

As for taping your exams, look at it this way. Most people when faced with a day to day interaction of some kind that is usually person to person, become highly suspicious of folks who suddenly feel the need to get the interaction on tape. All kinds of alarm bells go off. If you're honest with yourself you know you'd feel the same way if you were the doctor. The doctor doesn't have to be doing anything wrong, it's just the idea that this patient you are examining is so on guard and mistrustful that he demands to tape the exam, your comfort level drops to the basement. Doctors pay through the nose for malpractice insurance and are very gun shy when it comes to litigation. And nothing says litigation like a patient with a tape recorder. So while you may have a right to do something, the things you do may have unintended consequences.

"That would be a good thing for them to cut on my tombstone: Wherever she went, including here, it was against her better judgment." Dorothy Parker (1893 - 1967), 'But the One on the Right,' in New Yorker, 1929

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representing
Member

Posts: 52
Joined: Apr 2005

Monday July 25, 2005 10:18 AM

The remedy is too simple. Ask, "Because by the time I get home I will not remember this examination, would you object if I record my exam."

Tjfujii/yourlittledogtoo - IWs are not stupid, they are injured and trying to get a fair deal. And hopefully you won't say they all have been given a fair deal, starting with the employer to the WCJ.

Perhaps some of those AAs are wishing they had a little more patience now. More and more you see IWs handling their own cases, and you can't blame it all on SB 899.

The WCJ see enough stupidity and bad tactics from professionals to be put off by an IW who is trying.

For anyone who is in an authority to help someone else and will not do so because of a lame ass excuse, (not a revenge scenario, it's a why bother? scenario.) did not have the good intention to do so anyway. That's just something one says to boast their ego because the authority is in their hands.

Posts: 116
Joined: Apr 2005

Sunday July 31, 2005 9:35 AM

Tufigi (LDT) works for SCIF. Check www.mystatefraudstory.com for how SCIF works. Of course she doesn't want you to record....

-------------------------
Carol Hector

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andyourlittledogtoo
Senior Member

Posts: 504
Joined: Jul 2005

Sunday July 31, 2005 11:39 AM

Yessssss, Kay....It's all a great big conspiracy. We're actually watching you right now.

Idiot.

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"For a long time it had seemed to me that life was about to begin, real life. But there was always some obstacle in the way, something to be gotten through first, some unfinished business, time still to be served, a debt to be paid. Then life would begin. At last it dawned on me that these obstacles were my life." Alfred D'Souza

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art
Senior Member

Posts: 2111
Joined: Aug 2004

Sunday July 31, 2005 1:37 PM

I knew it!!!

Can you tell us if it's through the tiny transmitters in our fillings? Or is it from the nighttime rectal probes? I think it's the fillings 'cause the probes appear to be done by extraterrestrial lizard-like aliens!

BTW: Lining your ceilings and walls with aluminum foil can cut down on the transmitters range, but only (and this is very important!) if the SHINY-SIDE faces towards the outside!!!

Another reason I think it's the fillings is because floridating the water supply was obviously done as a method of providing a continuous ion stream to recharge the tiny batteries required to power the transmitters! And... SCIF could stand for Surveillence Concealed Inside Fillings! Waadayathink?

BTW: This isn't intended to comment on either carol's or ayldt's opinions re: SCIF. They've both got their own opinions stemming from their own experiences and their respective differences can only be resolved through a caged death-match. And, as entertaining as that would probably be, it ain't gonna happen. In the unlikely event that it does, I call dib's on the concession and t-shirt sales!

Later...

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andyourlittledogtoo
Senior Member

Posts: 504
Joined: Jul 2005

Sunday July 31, 2005 2:13 PM

Ah ah ah! Now that would be telling!

Although I like the idea of a caged death-match. Think of the possibilities! Each injured worker whose claim was not immediately accepted as industial would have to enter a caged death-match with their assigned CA, winner take all. Literally.

As I look around me at my fellow CAs, I have to tell you that the outcome would not be certain.

Ah well, back to the pool. Have a great Sunday, Art!

-------------------------
"For a long time it had seemed to me that life was about to begin, real life. But there was always some obstacle in the way, something to be gotten through first, some unfinished business, time still to be served, a debt to be paid. Then life would begin. At last it dawned on me that these obstacles were my life." Alfred D'Souza

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art
Senior Member

Posts: 2111
Joined: Aug 2004

Sunday July 31, 2005 2:24 PM

"Ah well, back to the pool."-- Hmmmmm?! From your icon and username, I'd have thought water might be an issue for you. Guess the movie got it wrong... BTW: Can ya' hook me up with any of those flying monkeys? I've got a great idea for getting my CA and Da's attention.

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andyourlittledogtoo
Senior Member

Posts: 504
Joined: Jul 2005

Sunday July 31, 2005 6:19 PM

I gave the flying monkeys the summer off. You can't believe the odors when the temperature goes up.....

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"For a long time it had seemed to me that life was about to begin, real life. But there was always some obstacle in the way, something to be gotten through first, some unfinished business, time still to be served, a debt to be paid. Then life would begin. At last it dawned on me that these obstacles were my life." Alfred D'Souza

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loislane2
Senior Member

Posts: 599
Joined: Jul 2004

Sunday July 31, 2005 10:08 PM

Toto, here.

Is that why i am itching so damn bad? You let the friggin monkeys GO! I think i know where they went. (Tee-hee, up kay's BUTT!)

(Dammit Toto, u get ur little butt back here! Was that your outside voice talking again?)

Dorothy, Oz sucks. I took the shoes. Find your own way home.

As for "Glenda" Your hair is really orange, and you have bad skin. I know i thought you were beautiful when i saw u as a mere puppy, on the big screen. But now that these really nice boys in San Fran have adopted me, they take me to a wonderful sing along to our film in the "Castro District", and boy they have such fun there! Anyway, Glenda, i am sorry, but you got nothing on the Wicked Witch, except your complexion is a little less, well...green.

Kisses and toodles, all

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"When one door closes another door opens; but we so often look so long and so regretfully upon the closed door, that we do not see the ones which open for us. -Alexander Graham Bell (1847-1922)

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