Monday, March 28, 2011

District Medical Advisor, (DMA) Reports

Ah, the DMA's, you just gotta love them, although not in the good way. If a DMA has been involved in your claim and provided a negative report, there are some things you can do. The best advice I can give you is to read the report over and over and over. Then read it at least once more. The more familiar with the report you are, the more likely you are to find errors, contradictions and inconsistencies.

The DMA's report must be up to the same standards as all other medical reports and more often than not, the DMA's reports don't meet OWCP's standards. You can pretty much count on the DMA's reports to be lacking required elements.

First, let's take a look at some of the rules regarding DMA's from the FECA Manual part 2 at 2-0810-8. You can find part 2 of the FECA Manual on the "Links" page.

FECA part 2 at 2-0810-8(a):
"The DMA's primary medical functions are evaluating medical evidence and interpreting physician reports. The CE seeks evaluation from the DMA in order to proceed with developing and weighing the medical evidence. The CE seeks interpretation from the DMA only where the medical evidence is complete and sufficient prior to such review. In either case, the comments or opinions of the DMA should be explained or rationalized."
Read your DMA report and see if it actually does provide an explanation or medical rationale. A few examples; the DMA says your condition should have resolved in six weeks but he doesn't say how or why he knows the condition should have resolved in six weeks or what information he based his opinion on. The DMA states continuing disability by your physician is unreasonable, but again he doesn't say how or why he knows your physician is wrong or what information he used to form his opinion. The DMA states the proposed surgery isn't warranted, but he doesn't say why it's not warranted or how he knows it's not warranted or what tests back up his opinion.

Medical rationale basically boils down to the HOW and WHY of the opinion. If a physician states an opinion, they must say why it's their opinion and how they know it to be true. Medical rationale is an explanation of everything that determined the physician's opinion or what it was that made up his mind.

FECA part 2 at 2-0810-8(c):
"The DMA has no authority to decide the facts in a case, as this is a function of the CE. However, the DMA may state whether an accepted incident was competent to produce the injury claimed. The DMA should be presented with the correct factual framework for the medical opinion requested. A SOAF is often the best avenue for conveying this information. Where the DMA finds that a determination pertinent to the medical opinion has been omitted, he or she should inform the CE of the additional factual information needed to place the case in posture for a rationalized medical opinion.
When referring a case to the DMA, the CE should submit medical questions which are case specific."
The DMA has NO authority to decide the FACTS in the case...so if the CE asked the DMA if the Office should accept or deny a condition(s), the DMA's report is of no value because the OWCP asked an inappropriate question the DMA is not allowed to answer. The DMA's job is to answer medical questions.

Although, the CE can ask the DMA if the employment events could cause the injury. For instance, the CE could ask the DMA if falling off a ladder and landing on a concrete floor could injure a claimant's knee and shoulders. If being in a motor vehicle accident could cause a neck or back injury. If getting attacked by a dog could injure a claimant.

If your CE asked the DMA whether or not the Office should accept your condition(s) or consequential condition(s), or to decide the facts of your case, cite the FECA passage above and quote the question the CE asked the DMA then state the report is of no value because the Office asked an inappropriate question the DMA is not allowed to answer.

FECA part 2 at 2-0810-8(g):

"While the DMA may create a conflict in medical opinion, the DMA may not resolve it. Furthermore, the DMA's reasoned medical opinion will not usually constitute the weight of the medical evidence in an accepted disability case, even if the DMA is a Board-certified specialist in the appropriate field of medicine and the AP [Attending Physician] is not a specialist and offers no rationale, because the DMA has not examined the claimant and the AP has a critical function in determining extent and duration of injury-related disability."
If you received notification the OWCP used a DMA's report to resolve a conflict in medical opinion, instead of sending you to an Independent Medical Evaluation, (IME) cite the FECA passage above and quote OWCP's notification which states the Office used the DMA's report to resolve the conflict. Then state that the DMA's report is of no value because a DMA's report cannot be used to resolve a conflict in medical opinion.

Your CE should have sent the DMA a Statement of Accepted Facts, (SOAF) or some other factual information. You should request a copy of the SOAF or other information that was sent to the DMA and check it for accuracy. If the SOAF is inaccurate or missing information, you can use that fact in your arguments to OWCP. I've put information regarding SOAF's, including ECAB decisions on the "Useful Stuff" page.

Not only should the SOAF be checked for accuracy, but the DMA report should be checked to see that the information contained in the SOAF is the same information contained in the DMA's report. In other words, did the DMA only use the SOAF (or other information) or did the DMA go outside the scope of the SOAF? OWCP physician's, including DMA's must rely on the SOAF, they can't go outside the information or questions provided to them. That's why the SOAF must be accurate. If the SOAF is inaccurate, the report is based on inaccurate information. DMA's must answer only the questions they were asked using your SOAF as the factual background.

Next, when your CE sends your file to the DMA, certain documents are "Bookmarked" for the DMA. Only these "Bookmarked" documents are sent to the DMA and these documents are what the DMA uses as the medical background of your case. You should request from your CE the list of "Bookmarked" documents that were sent to the DMA for review.

The CE should have sent questions to the DMA and you should request that the CE send you these questions and check to make sure they're appropriate medical questions.

As with any other OWCP medical report, you should check it for accuracy. Are the dates, names, places, etc...accurately reported?

In order to give a more accurate example of this process, I'm using actual information from the last DMA report I rebutted. To ensure the privacy of the claimant, I'm redacting the claimant's personal information. The DMA in this case is Dr. Arthur S. Harris. The issue is whether or not to add consequential injuries to the file. Dr. Harris' report states:

"The following report represents a review of the case file, which has been requested by the Office of Workers' Compensation Program. It should be noted, the claimant has not been personally examined or interviewed by this consultant.

The case file of [Jane Doe] is being reviewed at this time to address issues in memorandum dated December 15, 2010 from the Claims Examiner.

The claimant, date of birth, [January 01, 0000], was injured on [January 01, 0000] while in the performance of duty. The Office of Workers' Compensation Program has accepted cervical spondylolysis C4-5, C5-6 and C6-7, aggravation of cervical degenerative disc disease, cervical radiculopathy, bilateral sprains of the upper extremities and bilateral carpal tunnel syndrome as being work related.

The case file was reviewed by myself on December 4, 2010. At this time, it was my opinion that OWCP should NOT expand the accepted conditions in this case.

At this time, I have reviewed the entire case file as well as the Statement of Facts dated November 29, 2010. It is noted that the accepted conditions are 1) Cervical spondylolysis C4-5, C5-6 and C6-7; 2) Aggravation of cervical degenerative disc disease; 3) Cervical radiculopathy; 4) Bilateral sprains of the upper extremities; and 5) Bilateral carpal tunnel syndrome.

From review of the case file, I do NOT feel that OWCP should expand the accepted conditions in this case.

If there are any questions, please do not hesitate to contact me.

Sincerely,
Arthur S. Harris, M.D.
Orthopedic Consultant"
Based on the report of Dr. Harris, the claimant's consequential injuries were denied. This seems like bad news for the claimant, but that's not the case. After reading this 'report', can anyone tell me WHY Dr. Harris believes consequential injuries should not be added? Can anyone tell me what medical evidence or test results he relied on? By the time you're done reading any medical report, you should be able to say WHY the doctor had that particular opinion and what information the opinion is based on. A medical report that results only in the opinion of: Because I said so isn't a proper medical opinion or report.

The first thing I did with the report from Dr. Harris was send a letter requesting the CE send me a copy of the SOAF, the bookmarked documents and the questions posed to the DMA. When I received that information, the SOAF was incorrect, the OWCP asked the DMA an inappropriate question and the DMA's report contained no mention of any reports received or reviewed.

The CE indicated that forty five documents were sent to Dr. Harris for review. However, as you'll note, Dr. Harris does not discuss or mention ANY of the forty five documents provided to him, yet three times in his report he states that he reviewed the case file. This is an issue, as it is impossible to tell from his report what documents Dr. Harris did actually review or what information was contained within the documents he reviewed. What Dr. Harris is saying is that he has an opinion, but he gives no information on how he came to that opinion or what medical evidence he relied on to form the opinion.

Your DMA report should list the reports s/he reviewed (the 'bookmarked' documents). You should check to make sure that the DMA actually discusses all the reports and not just the reports from OWCP-directed exams, such as second opinion(s) or IME's.

Next, Dr. Harris states that OWCP should not expand the file, but gives no explanation how he arrived at this opinion nor did he provide any medical rationale to support his opinion. This is an issue as all OWCP medical reports must contain medical rationale to support the physician's medical opinion. As we know, OWCP doesn't accept an opinion just because the doctor says so. The physician MUST explain how s/he came to the opinion and why s/he knows it to be true. This does not just apply to a claimant's physician. It also applies to ALL of OWCP's physician's as well.

In this particular case, the CE asked the DMA whether or not the Office should accept consequential injuries. However, this question is inappropriate under the Act because the CE is asking the DMA whether or not conditions should be accepted or denied. The ECAB has addressed the role of the DMA in its decision in the case of Carlton L. Owens:

"The Office medical advisor's role is not to act in an adjudicatory capacity or address legal issues in the case, and the Office should carefully observe the distinction between adjudicatory questions which are not appropriate and medical questions which are appropriate."
The Board has held;
"A medical advisor should not offer opinions as to whether a claim or conditions should be accepted or rejected."

Office policy specifies;
"It is not appropriate for the DMA to offer opinions as to whether a case or medical conditions should be accepted." "The CE must always maintain responsibility for the case and should not consult the DMA to adjudicate claims or determine benefit entitlement, as these are primary functions of the CE."
Some of the arguments I made in response to DMA Harris' report are:

"The November 29, 2010 SOAF supplied to DMA Harris by the Office lacks sufficient detail and context and does not accurately represent what conditions the Office accepted as employment related. The SOAF includes only  five (5) of Claimant's seventeen (17) accepted conditions, omitting twelve (12) of her accepted conditions from all her assigned claims. The SOAF also omits any conditions which have been accepted as permanent by the Office or those added after Claimant's second opinion examination on June 23, 2010. The SOAF presents inaccurate filing dates and confuses the mechanisms of injury and claim numbers. Of claimant's five (5) accepted claims, only one (1) is depicted accurately."

"The CE is responsible for ensuring the information sent to the DMA is correct, complete, unequivocal and specific. The November 29, 2010 SOAF the Office supplied to DMA Harris is severely flawed and inadequate for use by the Office for any reason."

"The December 04, 2010 report of DMA Harris is of no probative value as it is not based on the actual facts of Claimant's files. Therefore, DMA Harris' December 04, 2010 report must be officially excluded from all of Claimant's files."

"The Board has held that medical conclusions unsupported by rationale are of little probative value. A physician's opinion on causal relationship must be one of reasonable medical certainty, but it must also be supported with affirmative evidence, explained by medical rationale and based on a complete and accurate medical and factual background, Willa M. Frazier, 55 ECAB 379, 384 (2004). The Office based its decision on a woefully insufficient medical opinion of diminished probative value."

The bottom line is, if you got a one or two page report from the DMA, there's an excellent chance that it's not a proper report, that it doesn't contain any medical rationale or other requirements. Most medical reports that contain medical rationale are more than two pages long. In that situation, you can fight the DMA's report just as you would any other OWCP medical report.

Also of note is that a DMA doesn't examine you. Because no examination results can be contained within a DMA's report, this makes the DMA's report of less value than that of a physician that did examine you and reported the exam results.

Don't be afraid to rebut an OWCP medical report. If your arguments are supported by the FECA Manuals and/or the ECAB, then OWCP will have to either change their decision or go back to the physician for a proper medical report. Sometimes the physician can't do it or the supplemental report is still lacking. When you force a DMA to follow OWCP's rules, sometimes their opinion changes because you're demanding more than because we said so.

When it comes right down to it, OWCP's physician's aren't that great at writing medical reports, OWCP just allows them to be lacking. You don't have to accept that. If your DMA report is lacking, fight it. You can't get in trouble for demanding accuracy or demanding that your OWCP medical reports are actually up to standards.

No comments:

Post a Comment