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Defense Base Act Lawyer Straight talk: What can happen if you don’t have a good medical report for your DBA case

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Defense Base Act Lawyer Straight talk: What can happen if you don’t have a good medical report?

“When I seek out professional advice, I want honesty, I want frankness, I want advice straight-up, with no B.S. So should you.”

Defense Base Act Lawyer and author of the 5 Star book Win Your Defense Base Act Case  Bill Turley

 

Defense Base Act Lawyer  Straight Talk

If you follow this website or have read my book - Win Your Defense Base Act Case, you know that I’m all about giving it to you straight. I’m not going to blow smoke, and tell you what you want to hear. Instead, I’m always going to tell you what you NEED to hear.
 
In other words, Defense Base Act lawyer straight talk.
 
 
Good persuasive medical evidence in your Defense Base Act case
 
What you will need is good persuasive medical evidence in order for you to prevail in your Defense Base Act case.  
 
In this article, I talk about what can happen if you don’t have good persuasive medical evidence when you bring a Defense Base Act case. Or, as was the situation with the case I discuss here - extremely poor medical evidence.
 

In this article I discuss the following questions and/or subjects: 

Your credibility

The medical evidence

What can happen if I don’t have persuasive medical evidence?

A closer look - a recent case with poor medical evidence

What about the insurance company doctor’s report?

Conclusions don’t cut it

It’s your burden to prove your impairment rating

What can I do to learn more?

How this plays out in the real world

Scheduled injuries require AMA Guidelines

You don’t want to be this guy (or gal)

You may have to hire a doctor to evaluate you and write a medical report

One last thought - what it costs not to have a good medical report

Your credibility

The most important factor that will determine whether you win or lose your DBA case is whether the Judge believes you or not. In other words your credibility. Or stated differently, your lack of credibility. 
 
Because if the Judge doesn’t believe you, you will lose. It’s really is that simple.
 
Your credibility factors into every part of your case. For example, the DBA insurance company doctor will almost always say that you didn't give your maximum effort during their medical examination. If you have a leg injury, arm injury, back injury and/or neck injury, the insurance company doctor will say that you have more range of motion than you gave at the time of your exam. Meaning, you may get less money if the Judge believes them. If you have credibility issues, then the Judge will not believe you. 
 
A lot of well meaning folks think,"I have a legitimate injury, I'm entitled to DBA compensation, I’m telling the truth, I don't have to worry about this. I'm good." Not.
 
The DBA insurance company is all about setting traps and tricks for you - that will tank your credibility.  That's one of the main reasons I wrote, the 5 Star book - Win Your Defense Base Act Case. 

 

The medical evidence

The second most important part of your DBA case is your medical evidence. You will need to prove that you were injured (this isn’t nearly as easy as you might think, in many cases) and your permanent impairment. There may be other medical issues in your case, but we will focus on permanent impairment here.
 
If you have a scheduled injury, you will need medical evidence of your permanent impairment under the AMA Guides.
 
If you have a non-scheduled injury, you will need medical evidence, if applicable, that your injuries prevent you from performing your usual and customary employment as an overseas contractor.  And you will need evidence of your current medical limitations in order to prove what your wage earning capacity is.
 
Yes, you will need evidence in order to win your Defense Base Act case. Here is an excellent article on Defense Base Act evidence.
 

What can happen if I don’t have persuasive medical evidence?

 
Short answer. You lose. You get no money. Nothing. Nada. Not good. On any level.


A closer look - a recent case with poor medical evidence

I’m not making this stuff up.  This is a look at a recent case. This isn’t one of our cases. But I like to read recent cases in order to keep my ear to the railroad track, so to speak. I have not provided the names in order to protect folks privacy. 
 
The claimant (the person bringing the claim) had a knee injury while working. The dispute in the case was claimant’s entitlement to a scheduled award for permanent partial disability of the left knee.  See 33 U.S.C. §908(c)(2), (19). In other words, how much money, if any, that they would get for their knee injury.
 
In support of their positions, claimant relied on the 24 percent impairment rating of Dr. F and the insurance company relied on Dr. C’s opinion that claimant has no permanent impairment. (I will call the claimants' doctor - “Dr. F” and the insurance company’s doctor “Dr. C").
 
The administrative law judge gave “Dr. F’s opinion very little weight as it is poorly reasoned.”
 
The administrative law judge stated that Dr. F’s rating is based on claimant’s persistent pain and loss of endurance and function.  He found that Dr. F only briefly summarized the medical records and the results of his own examination, and did not further explain his 24 percent impairment rating other than to reference the American Medical Association Guides to the Evaluation of Permanent Impairment.
 
In case you missed that, the doctor didn’t explain the permanent impairment under the AMA Guides. 
 
Here is a ‘writer-downer.”  Your doctor’s medical report must refer the current AMA Guides, by page number and table number and literally walk the judge through how the doctor arrived at your AMA Guide rating.  Stating your AMA impairment by a conclusion, means you will lose.  The devil really is in the details.
 

What about the insurance company doctor’s report?

Although the administrative law judge found Dr. C’s opinion merits “little weight,” he explained why it was nevertheless better reasoned and deserving of greater evidentiary weight than Dr. F’s opinion.  He stated that Dr. C noted no swelling, muscle wasting, or ligamentous instability, and testified at his deposition that arthritis, which was noted on an MRI, could explain claimant’s sense that his knee might give way.
 
The administrative law judge also addressed notes from claimant’s final physical therapy appointment that he had “resolved L knee pain,” and “Patient notes that [his knees] are performing at their prior level of function . . . p.t. has helped a lot.  No problem, . . . [and] my knee feels great.”
 
In other words, tough luck Chuck.  The insurance company’s medical report was just as bad as the Claimant’s medical report. But, that doesn’t matter. Because claimant has the burden of proving his or her permanent impairment.
 

Conclusions don’t cut it

The administrative law judge found that Dr. C, like Dr. F, provided “a bare conclusion [for his impairment rating] without any explanation beyond reference to the AMA Guidelines . . . .”
 
Let this be a lesson. Your medical report can’t be written as a conclusion. You need analysis. 
 

It’s your burden to prove your impairment rating

You have the burden of proof. Meaning, if you show up to trial without this type of specificity, you can expect to lose. Don’t miss this memo.
In legal speak - it is claimant’s burden to establish the extent of his disability.  Pisaturo v. Logistec, Inc., 49 BRBS 77 (2015).
 

What can I do to learn more?

 
I suggest that you get a free copy of my book - Win Your Defense Base Act Case. I know good Defense Base Act law firms that have all their lawyers read my book. 
 
WIn Your DBA Case
 

How this plays out in the real world

Most doctors are doctors because they want to provide medical treatment. They want to help people. Some doctors are adverse to getting involved in a legal case and don't want to write medical reports. they sometimes think writing reports isn't what they signed up for.
 
On the flip side, there are many conscientious doctors out there that want to help their patients. If you need a medical report in order for you to get the benefits that you are entitled to under the law, they will write you a medical report in order to help you get these benefits. 
 
So, if your doctor agrees to write you a medical report, you need to make sure that the doctor understands that they must provide a disability impairment pursuant to the AMA Guides to the Evaluation of Permanent Impairment (as of the writing of this article the latest edition is the 6th Edition). You can go to this link in order to buy the AMA Guides, 6th Edition. If you need to buy it and give it to your doctor, that is a start. You might also want ask you doctor to read this article. 
 
You need to explain to your doctor, that the report must reference the AMA Guides and cite to specific pages and/or tables in the AMA Guides. All you are asking of your doctor is for him or her to, "call it as they see it."  That is, provide an objective AMA rating in order for you to get the benefits that you're entitled to under the Defense Base Act / Longshore Act (the DBA is an extension of the Longshore Act). 
 
You may have to pay your treating doctor for the time they take to write you a report.  This is not uncommon. You are paying for their time, not paying them to write a report in your favor.  Hopefully, their report helps you, but that isn't what you're paying them for. 
 

Scheduled injuries require AMA Guidelines

 
You only really need a medical report evaluating your impairment under the AMA Guidelines if you have a scheduled injury. If you have an unscheduled injury, you still need a well reasoned report - but it doesn’t have to be pursuant to the AMA Guidelines.


You don’t want to be this guy (or gal)

 
When you show up in court, you’re going to need persuasive medical evidence that explains the basis for the doctor’s opinions. If you have a scheduled injury you will need your doctor to walk through page by page of the AMA Guides, explaining your permanent impairment rating.
 
If you have an unscheduled injury, you don’t need this detailed AMA Guide analysis. But you will need a medical report that explains how you were injured, how your current disability and/or medical condition is linked to your overseas injury and why your current medical condition prevents your from performing the work you did as an overseas civilian contractor.
 
If you have an unscheduled injury, it is important that your doctor understand the physical requirements of your job as an overseas civilian contractor. 
 

You may have to hire a doctor to evaluate you and write a medical report

 
If your treating doctor refuses to write a medical report pursuant to the AMA Guidelines and/or a well reasoned medical report if you have an unscheduled injury - then you may have to hire a doctor to evaluate you and write a medical report. 
 
This usually isn’t your first option or best option, but it’s better than showing up at trial with a bad medical report.
 
Make sure you provide the doctor with a copy of all your medical records. Including any medical records for pre-existing medical conditions of the same parts of your body as your DBA claim. Their report will need to say that they reviewed all of your medical records. 
 
Remember, you’re just looking for a doctor that is going to “call it the way that they see it.”  That’s all you really want.
 

One last thought - what it costs not to have a good medical report

 
In our case study, let's suppose that Claimant really did have a 24% AMA impairment of the leg.  Their disability award would have been as follows (assuming they have a maximum compensation rate like most overseas civilian contractors do). 
 
288 weeks x 28% =  80.64 weeks of compensation 
 
$1,560.08  x 80.64 weeks =  $125,804 
 
That's right, not having good, persuasive medical evidence may have cost them a lot of money. 
 

The bottom line and you're "take away" here 

 
Remember, the Judge didn't say that the Claimant didn't have a 28% impairment of the lower extremity (leg).  The Judge just said that the Claimant didn't meet their burden of proof because the medical report was not well reasoned and supported by the AMA Guides. 
 
The Judge even admitted that the DBA insurance company report wasn't persuasive. But it didn't need to be, because the Claimant's medical report didn't meet their burden of proof. 
 
What I took from this, is that the Judge would have completely gone with a good, persuasive medical report by the Claimant, if only one had been provided. 
 

Need help right now?
 

Call us at 619-304-1000  - If you call after regular business hours, when you leave a message, be sure to repeat your name and telephone number twice, so we get it correctly. And be sure to indicate whether it's okay if we respond by text.
 
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Or you can leave us a message on this web page.
   


   
        
 
This article isn't legal advice
 

These discussions and/or examples are not legal advice. All legal situations are different. These testimonials, endorsements, photos and/or discussions do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter, or your particular case/ situation. Every case is different. There are any number of reasons why DBA cases are not won and/or are not as successful as folks might have hoped for.
 
Just because we have gotten great results in so many other Defense Base Act cases, doesn't guarantee in particular result in other cases. Including, your DBA case. Every case is different.
William Turley
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“When I seek out professional advice, I don’t want B.S., I want it straight up. I figure you do also.”
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