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The Agreed Medical Evaluator was created by the Legislature as part of the 1989 reforms, replacing the Agreed Medical Examiner with the new label and formal statutory requirements. The statutes were tweaked in subsequent sessions and SB 863 once again changed the rules as provided in Labor Code §4062.2: Effective 1/1/13, the parties in a represented case do not have to make any effort to agree to an AME before applying for a panel Qualified Medical Evaluator or after receiving a panel.

Subsection (f) was added: “The parties may agree to an agreed medical evaluator at any time, except as to issues subject to the independent medical review process established pursuant to Section 4610.5. A panel shall not be requested pursuant to subdivision (b) on any issue that has been agreed to be submitted to or has been submitted to an agreed medical evaluator unless the agreement has been canceled by mutual written consent.”

Agreed Medical Evaluators do not have to be Qualified Medical Evaluators. They get paid 25% more than Qualified Medical Evaluators, so being selected as an AME is an attractive proposition to some practitioners. In order to keep their popularity as AMEs, they must do a certain amount of “baby splitting” bearing little resemblance to King Solomon's ruse. Usually it involves apportionment of permanent disability or a conservative discussion of future medical treatment. Under SB 863, an Agreed Medical Evaluator can no longer decide issues of current treatment (see Labor Code §4062.2(f) and Labor Code §4610.5). The parties can still agree to use an agreed evaluator to provide a second opinion on treatment, however, under Labor Code §4601(a).

If the parties do agree to an AME, they must also agree on what information is to be provided to the AME (Labor Code §4062.3).

See, too, Qualified Medical Evaluator and Medical-legal Reports

Label Item Links Comments
Labor Code Agreement to medical evaluator

Agreement as to what to send to AME

LC §4062.2

LC §4062.3

Regulations/Rules Medical-Legal Expenses and Comprehensive Medical-Legal Evaluations

Reasonable Level of Fees...

Exchange of information: Rule 35

8 CCR §9793

8 CCR §9795

8 CCR §35

Practice Tips Whether to agree to an Agreed Medical Evaluator is a strategy issue. Often one side or the other refuses to agree but later changes their position when an AME presents as the best alternative. WCJs frequently suggest this to warring parties as the remedy for litigious situations.

While AMEs are often accused of “splitting the baby” in order to keep business and get paid at a higher rate, they play an important role in the system as they balance the needs of both sides and even out the playing field.

Attorneys who refuse to consider AMEs under any circumstances are as intransigent as those who immediately consent to AMEs in all circumstances. The fact is, one needs to consider the issue carefully before deciding on a strategy, and be willing to revisit the subject as the case changes over time. There is no hard and fast rule.

Some reasons to use an AME: Avoidance of “doctor roulette”; a panel QME (PQME) already on the case who cannot write a substantial evidence report; a Primary Treating Physician (PTP) who cannot write a substantial evidence report; irreconcilable differences between PTP's and PQME's reports; trial judge requires use of AME or will pick evaluator on his/her own (another form of Russian roulette).

Some reasons not to use an AME: you have a great report from the PTP or the PQME; you have a great LeBoeuf case and cannot risk the AME “splitting the baby,” or your client will not agree. Whether you are a defense attorney or an applicant's attorney, the client needs to consent to using an AME.

There is always the concern that your decision in either direction could lead to professional liability or loss of business when a client is disgruntled with the AME's report or deposition testimony. Since you agreed to this doctor, it is “your fault” whereas a poor PQME is the system's fault.

Lastly, beware bogus offers to use an AME from a list of known defense hacks: either the defense attorney is hoping the applicant's attorney does not know who the neutral AMEs are or cannot find out, or the defense attorney wants to claim later, “We offered to use an AME” while having no real intention of doing so. Either offer some doctors who are respected by both sides or ignore the offer as indicating no intention of agreeing to an AME and only for show or to satisfy some rule. Since SB 863 revised Labor Code §4062.2 to eliminate the need to send an AME offer letter, we expect to see fewer bogus offers.

A defense attorney on “The AME Trap (aka Why Agreed Medical Examiners Make Me Disagreeable)” The AME Trap The hardening of the attitudes makes for billing opportunities but not always the best strategy to meet the client's needs.
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