THE BEST PERSPECTIVES

June 2017

By Beverly N. Masuda

The Firm recently marked 20 years of operation with another in its series of Annual Seminars. Drawing on their experiences as Arbitrator, Psychologist, and defense counsel, speakers illuminated the path to advantageous claims results.

Prominent among the speakers were Arbitrator Maria Bocanegra and Dr. Nancy Landre. As a litigator turned Judge, Arbitrator Bocanegra brought a breadth of perspective to her topic of procedures that, while tending to be overlooked, nevertheless could be employed to streamline and persuade. She called attention to Section 8.2 (a-3) of the Act, which limits the amount that can be charged when a prescription medication is dispensed outside a licensed pharmacy, for example, from a physician's office. She stressed the value of a thoroughgoing investigation into the totality of circumstances surrounding the prescription and delivery of a drug as opposed to simply turning the issue over to a vendor for pricing. She emphasized as well that she often wished evidence would be introduced not just on whether the drug represented reasonable and necessary care, but also, whether it might be replaced with a less costly substitute.

Another device the Arbitrator pointed to as effective, particularly for pressing the case to a head, is the Form 41. Routinely submitted by one side or the other seeking a continuance, the Form 41 is most often in the Arbitrator's experience only cursorily filled out. That approach risks missing an opportunity. She reminded the audience that the case will be up before her again in 90 days (or before, if emergency relief is sought) and she'll be looking for indications of what has been done to advance resolution. Her desire for that information will be particularly acute where one side seeks definitive action. With a record of what has gone before (for example, how many trial motions, how many demurrals), the Arbitrator has leverage to pressure a recalcitrant party. A Form 41 containing substance helps her terminate "aged pending".

In her presentation, Dr. Landre considered how to maximize the impact of the expert psychologist. She clarified the credentials that best qualify a Doctor, including specifics on education training and certifications. She went on to address the testing methods that carry the greatest weight, calling into question any that omit performance validity measures. Lacking effective controls, she pointed out tests are stripped of reliability, becoming easy targets for impeachment.

The Doctor also invoked evidence-based medicine and emphasized its importance to ascertaining the quality of psych care. Of significant interest were her observations on how some symptoms and poor outcomes were actually suggested, indirectly in the course of care, to the worker by the treating psychologist herself. The Doctor concluded her remarks by considering the danger that PTSD is over diagnosed; that some commonly experienced symptoms (sleep disturbance) are misdiagnosed, that many psychological disabilities existed long before any work incident, and, the tenuousness of trying to connect the two.

Arbitrator Bocanegra and Dr. Landre each provided excellent examples that served to explicate their points and how they played out in practice. The Firm thanks them for taking the time to share with the Industry their knowledge, experience, and expertise.