I’m starting a new series of blog posts devoted to identifying some of the insurance industry’s most frequently-used “independent” medical examiners. I call them “The Gang of Seven”. They include: Dr. David Bauer, Dr. Lynne Bell, Dr. Dennis Chong, Dr. Keith Holley, Dr. Stephen Marble, Dr. Patrick Radecki, and Dr. Marilyn Yodlowski.
If your insurance company sends you to any of these doctors, beware!
First up: Dr. R. David Bauer. OMAC expert.
Dr. Bauer is listed on the web with a site called “Forensic Expert Witness File”. https://forensic.org/find-an-expert/profile/1C2F69DF-1051-4A7E-BC95-5A140FA1DFA4 He practices medicine in Garland, Texas. He has been practicing for thirty years, first in the air force, and then in Texas. He has no reported disciplinary actions nor has he won any awards. See: http://reg.tmb.state.tx.us/OnLineVerif/Phys_ReportVerif_new.asp
If you look up his Google rating, you’ll find he has a 1.5 star rating. Some of the comments which I have edited for brevity include:
A paid shill for insurance companies…Be mindful that although the evaluation is mandatory; a reputable orthopedic surgeon will not make a primary living masquerading as an "Independent" Medical Examiner. – Victoria Coghlan
If I could give him negative stars I would. I was referred to this quack by my workers comp….He did not listen to anything I had to say, only telling he knew everything about my injury. He only spent about 10 minutes with me and in the end of the appointment he walked out. …I fell an injured my back and shoulders on the job and he has the nerve to tell them it was a pre-existing condition. I was not having any pain prior to my fall….Whatever you do... DO NOT see this doctor. – Laurie Langston
This doctor is paid by Workers Comp Ins to find nothing wrong with you. I have three doctors that say I need knee surgery and Prolo therapy for my SI Joint and continued PT for my upper back. This scum bag spent 20 mins with me and said nothing is wrong with me. – Beach_Bum5150
I was sent by my issurance company to go see this doctor to see if Im getting the right treatments for my work injury. This doctor is a joke he said he went through my entire file and looked at the six diffenent doctors notes and finding. This doctor was paid to say that I no longer need treatments or medications due to my injury and his findings. This guy looked at all my MRIS CT SCANS, Molograms etc, and he say that I am exaggerating! Wow what a joke….We talked about 30 minutes before he did a 5 minute exam!...– Steven Hearn
Let's take a look at some of the recent Alaska cases in which Dr. Bauer issued opinions.
The earliest case reported with Dr. Bauer testifying in Alaska is 2017. There are approximately thirty cases. These would not include cases in which he issued a report and the employee didn’t fight it or cases that have not gone to hearing yet. Here are some of the cases in which Dr. Bauer testified in Alaska during the past few years.
Before you read the opinions, you’ll notice a trend. Most of the time he is hires by Liberty Mutual. And most of the time he opines that the employee does not need treatment and can go back to work.
Also keep in mind that although Dr. Bauer wrote reports stating that these Employees were not entitled to benefits, ten of these Employees won their hearings.
Serafin v Denali AK Fed Credit Union and Liberty Mutual AWCB 17-0032 (3/21/17)
The Employee injured her back lifting and moving a small refrigerator at work. She was diagnosed with a herniated disc and annular tear.
The insurance company first sent her to Dr. Keith Holly, who said the disc injury was caused by gaming at home and need for treatment was not work-related. Her treating physician, Dr. Johnston at Alaska Spine Institute disagreed.
Dr. Flanum performed a microdisctomy.
The Second Independent Medical Evaluator (SIME), Dr. Coulter, found the injury was work-related and treatment reasonable and necessary.
She continued to have pain and had a second surgery.
The insurance company sent her to see Dr. Bauer who concluded the February 24, 2010 work injury was not the substantial cause of any then-current disability or need for medical treatment, including surgery. Dr. Flanum disagreed with Bauer’s opinion. The SIME doctor, too, disagreed with Dr. Bauer. After the SIME doctor’s deposition, Bauer wrote a rebuttal letter stating: I do not believe the work injury from February 24, 2010, is the substantial cause of the need for medical treatment from January 19, 2012, through January 31, 2014. In my medical opinion, Ms. Serafin's occasional back symptoms between 2012 and 2013 were due to the progression of degenerative disease consistent with age. The symptoms from mid-2013, when she had the disk herniation, through 2014 are due to a sudden and unrelated event. Therefore, the 2010 work injury is not the substantial cause of her disability or need for medical treatment.
At his deposition, Dr. Bauer testified the 2010 MRI study as revealing a disc ““bulge” rather than herniation. He believed the February 24, 2010 work injury was not the substantial cause of Employee's need for treatment, but only an aggravation of a pre-existing degenerative condition which resolved. Because disk bulges can be caused by aging, Dr. Bauer believes the disc bulge was present prior to and not caused by the 2010 work injury. Employee had an “age appropriate” spine on the imaging….Referencing academic literature, 70-80 percent of studied individuals with one-level disc herniation had no identifiable, known cause. The majority of these injuries are caused by a “wrong move” or even turning over in bed.
The case went to hearing. The Board found Employee credible and her physicians credible. Further, it found that the lack of treatment prior to injury, employee’s credible testimony, the medical records, her doctors’ credible testimony outweighed Holly and Bauer. It held
that the disability and need for treatment was work-related. Ordered Liberty Mutual to reimburse for past medicals.
The Employee won.
Bailey v Discovery Construction, AWCB 17-0043 (4/18/17)
On April 25, 2006, Employee stopped his vehicle at a red light and a car struck him from behind. This injury arose out of and in the course of his employment with Employer.
On October 9, 2008, James Eule, M.D., examined Employee for his 2006 work injury and said, “[Employee's] injury to his neck and his back from my history from his [sic] is likely to both have occurred from this automobile accident ....” Dr. Eule opined Employee had a cervical disc herniation and herniations at L3-4 and L4-5, and his options were a microdisectomy or continuing to live with the condition. Dr. Eule also noted “physical therapy and/or an epidural injection” might be more helpful than chiropractic treatment.
On May 14, 2016, David Bauer, M.D., performed an EME on Employee in the instant case and diagnosed resolved cervical and lumbar strains related to the 2006 work injury, and preexisting vertical and lumbar degenerative changes neither aggravated nor accelerated by the work injury. He stated treatments after Dr. Eule's September 22, 2009 examination were unrelated to the work injury, and said ongoing narcotic use was related to the 2012 injury.
The Employee may have had a good cause, but he didn’t win a SIME order because he had filed his request late, and he was denied back TTD because he had filed that request late. The Board had ordered that he could file new claims for TTD, TPD and PPI at a later date.
Israelson v AK Marine, AWCB 17-0064 (6/6/17)
The Employee injured his back at work moving pallets. The first insurance doctor said his injuries were work-related. So the Employer got a second evaluation from Dr. Bauer and denied all benefits after certain date. Because the case was on hearing only upon the issue of attorneys fees, the details of Dr. Bauer’s report are not listed.
However at some point the Employer must have recognized he had a good case notwithstanding Dr. Bauer’s report because it settled for $248,224.85.
Adams v Michael Heath AWCB 17-0065 (6/7/17)
On August 18, 2011, the Employee was injured while doing roofing and construction work. Employee fell from a ladder supported by cribbing and was unable to move after the fall. Dr. Steven Johnson performed a temporary trial spinal cord stimulator (SCS) implant. When the Employee decided he wanted to go forward with a permanent SCS, the Employer sent him to Drs. Bauer and Cong.
Drs. Bauer and Chong opined: All medical treatment so far has been medically necessary and reasonable. Employee reached medical stability after the work injury in August of 2014, though he did have complications which required treatment. Drs. Bauer and Chong recommend against implanting a spinal cord stimulator, based in part on Employee's history of chronic substance abuse and the current high doses of narcotic pain medications, which they feel would very likely increase complications from this procedure.
Further they opined: Mr. Adams does not have the physical capacity nor the lower limb dexterity to perform the duties of a roofer/carpenter. Yes he can certainly work. All individuals with an ASIA D L3 neurological level of injury are capable of gainful employment on a full-time basis should they choose to do so.
Dr. Jon Scarpino performed a second independent medical examination (SIME). He stated: The substantial cause of Employee's condition and ongoing need for medical treatment was the August 18, 2011 work injury for Employer, and that the Employee was a candidate for a dorsal column stimulator to try and reduce pain complaints and need for medication.
The Board found Dr. Scarpino credible and ordered SCS, and further that the Employee was permanently totally disabled (PTD).
The employee won.
Gillion v North West Co, Berkshire Hathaway, Liberty Mutual 17-0089 7/31/17
The Employee injured back wrapping pallet. He was treated with epidural steroid injections.
He attended an employer medical examination (EME) with R. David Bauer, M.D. Dr. Bauer diagnosed a strain of the lumbar spine and “degenerative disease of the lumbar spine, neither aggravated by, nor accelerated by, the incident in question.” Dr. Bauer indicated Employee's lumbar strain caused the short-term pain from December 10, 2015 to February 2016, but the work injury would not be the substantial cause of any ongoing disability or need for treatment except the 12 sessions of physical therapy Employee was participating in. Dr. Bauer also opined Employee would be medically stable with no ratable permanent impairment after the 12 sessions of physical therapy, and would be able to perform heavy work with no physical restrictions.
Dr. Paul M. Puziss conducted an SIME examination of Employee, and supplemented his report with later deposition testimony. Dr. Puziss opined that the work injury was the substantial cause of Employee's past and continuing disability and need for medical treatment, and no other cause existed. Dr. Puziss opined Employee was not medically stable, and recommended treatment including an L5-S1 facet medial branch block, left medial branch block radiofrequency ablations at L5-S1 facet and possibly L4-5, left sacroiliac (SI) joint local anesthetic and steroid injection, lateral branch block of left SI joint, and left SI joint lateral branch radiofrequency ablations, as the success of progressive treatments required. Dr. Puziss opined Employee could perform light duty work, but noted that Employee's description of his actual duties was not light duty.
Dr. Puziss criticized Dr. Bauer's EME report, noting that Dr. Bauer had not performed a Kemp test or a Milgram test, which might have revealed the conditions and symptoms that Dr. Puziss observed and diagnosed.
The Board found that Dr. Puziss conducted a thorough and professional examination, gave a detailed and well-supported medical opinion. Dr. Puziss's medical opinions and testimony are credible.
At the hearing, the Employer withdrew its opposition to a number of Employee's claimed benefits. It agreed to pay the Employee what it owed him.
The Employee won.
Carrico v Peterkin, Liberty Mutual, AWCB 17-0132 (11/22/17)
The issue was whether Reemployment Benefits Administrator’s decision should be modified because of new evidence.
Employee worked for Employer as a driver. He reported that on December 9, 2015 he had injured his right shoulder transferring gallons of milk from a pallet to milk crates.
On March 11, 2016, Herbert Bote, M.D., performed surgery on Employee's shoulder.
On October 13, 2016, Ms. Cranston sent the job titles to Dr. Bote. Dr. Bote reviewed the job descriptions and predicted Employee would have the permanent physical capacities to perform all three jobs. Based on Dr. Bote's prediction, Ms. Cranston recommended Employee be found not eligible for reemployment benefits.
Employee did not recover as expected. On December 1, 2016, Dr. Bote performed a second surgery, and on April 11, 2017, he recommended a total shoulder replacement.
The Employee was seen by David Bauer, M.D., for an employer's medical evaluation (EME). Dr. Bauer opined the cause of Employee's need for the shoulder replacement surgery was the degenerative changes in his shoulder, not the December 2015 work injury.
The Employee petitioned for modification of the RBAD's eligibility determination based on a change in condition: Dr. Bote’s changed prediction, stating Employee would not have the physical capacities to return to his job at the time of injury
Board ordered remand.
The Employee won.
Donnelly v Harnish Group AWCB 17-0149 (1/2/18)
On November 30, 2016, Employee underwent an EME with Dr. Bauer. Dr. Bauer diagnosed lumbar strain resolved, substantially caused by the December 12, 2007 work incident and progressive degenerative disease of the lumbar spine, neither substantially caused by nor aggravated by the December 12, 2007 incident.
Dr. Bauer found no causal relationship between the work injury and the low back problems that led to Employee seeking treatment in 2015. The once commonly held view that disc degeneration was the result of ‘wear and tear’ from mechanical insults and injuries or aging has been replaced by the scientific viewpoint that ‘disc degeneration’ appears to be determined in great part by genetic influences. Although environmental factors also play a role, it is not primarily through physical demands as once suspected .... The injured workers' condition was not secondary to an acceleration or aggravation created by the December 12, 2007 incident.
The Employee won a SIME order.
Johnson v Blazy Construction AWCB 18-0040 (4/20/18)
On October 16, 2017, Employee filed a claim for temporary total disability (TTD), a permanent partial impairment rating and benefit (PPI), medical and related transportation costs, interest, and review of a reemployment eligibility determination. The claim states on June 11, 2017 Employee herniated a disc in his back removing heavy debris as part of a demolition project for Employer.
Employee was seen by Dr. Lee, who stated Employee had recently undergone surgery for a herniated disc, and that “[t]his surgery was medically necessary and most likely the result of a work-related injury.” Employee was seen by Brian Tureman, PA-C at Kenai Spine in Soldotna, Alaska. PA-C Tureman opined Employee's symptoms were consistent with disc herniation and are work-related.
On August 30, 2017, David Bauer, M.D., performed an employer's medical evaluation (EME). Dr. Bauer opined Employee had a herniated disc at L2-3, which herniated in the middle of the night as Employee was turning over in bed. Herniated discs occur spontaneously in life, and the substantial portion of them do not occur as a result of trauma. In Employee's case, this is a spontaneous event, the substantial cause of which is unrelated to employment. Although Employee was not yet medically stable, there was no evidence of an impairment caused by work for Employer.
The Employee won a SIME evaluation.
Henson v Apicda Joint Ventures, Liberty Mutual AWCB 18-0044 (5/11/18)
The Employee tripped in a freezer container in the course of his employment and injured his leg and back.
The RBA Designee Penny Helgeson issued an eligibility evaluation determination finding Employee not eligible for reemployment benefits. The determination notes that Employee had filed documents on March 10, 2016 disputing the “light” classification of the Chef job title, but states that the documents did not change the outcome of the determination.
The Employee was examined by Dr. Kirkham, who recommended Employee find sedentary work, based on the April 20, 2016 FCE. Dr. Kirkham states “... chef is a light duty position and not a sedentary duty position, so he would not be able to return to work as a chef.”
The Employee attended an EME with R. David Bauer, M.D. Dr. Bauer found no objective or physiological basis for Employee's pain complaints, no objective or physiological reason Employee could not return to his job at the time of the injury, or other heavy-duty work.
The Employee won a remand to the RBA for modification of her previous denial.
Tumenas v Katmailand,Wausau, a Liberty Mutual Company AWCB 18-0047 (5/15/18)
The Employee reported an injury to his lower back that had occurred in June 2008 while working for Employer.
On January 7, 2016, Employee filed a claim for medical benefits and a finding of unfair or frivolous controversion, stating that the claim had been controverted for unknown reasons, and the adjuster and his manager had not responded to calls or an office visit.
Employer and Insurer rely on the IME opinion of Dr. David Bauer that Employee is medically stable from the work injury and that no additional medical treatment is reasonable or necessary to the process of recovery from the work injury. The work injury is not the substantial cause of Employee's waxing and waning low back symptoms or continued treatment.
This may have been a good case, but we will never know. The Employee did not timely comply with deadlines so his case was dismissed.
Cavitt v D&D Services and Ohio Casualty Company AWCB 18-0060 (6/25/18)
The employee fell from scaffolding at work and fractured his elbow. He had partial elbow replacement surgery. He had a second surgery because hardware came loose due to osteomyletis (infection.) His treating physician recommended continuing follow-ups every year or two because of infection and stated that in future there would be additional surgeries and that he could not go back to the job he was doing at time of injury or subsequently.
On January 25, 2018, Employee was seen by Dr. Bauer for a second EME. In addition to examining Employee, Dr. Bauer reviewed medical records dated after his April 26, 2017 EME. Dr. Bauer's diagnosis were unchanged since his April 2017 EME report, and he continued to find the work injury was the substantial cause of Employee's disability and need for medical treatment, and treatment to date had been reasonable and necessary. However, Dr. Bauer found Employee had reached medical stability as of the date of his examination and the only further treatment needed was a home exercise program and continued use of his elbow brace, although a functional capacity evaluation would aid in determining appropriate restrictions for future employment. Dr. Bauer rated Employee with an eight percent permanent partial impairment.
When the Employee filed a claim and took the case to hearing, the insurance company, Ohio Casualty (a Liberty Mutual company) withdrew its controverson and refused to produce Dr. Bauer for testimony.
The Employee won.
Thomas v State of Alaska, AWCB 18-0110 (10/24/18)
On February 28, 2018, Employee was seen by M. Sean Green, M.D., and R. David Bauer, M.D., for an employer's medical evaluation (EME).
Drs. Green and Bauer reviewed Employee's medical records from before the work injury, including an August 11, 2005 record and a February 16, 2010 record. The next record reviewed was for treatment on January 20, 2017, two days after the work injury, with Teresa Bormann, M.D. Dr. Bormann diagnosed back strain and neck pain and prescribed massage therapy. The report documents several medical records for massage therapy and chiropractic treatment through December 7, 2017 when Employee returned to Dr. Bormann. Dr. Bormann diagnosed a chronic neck muscle strain and referred Employee to Claimant for physical therapy.
Drs. Green and Bauer stated cervical strains resolve in a matter of days to weeks and there is “no such thing as a chronic muscle strain.” They opined all treatment beyond the initial evaluation was neither reasonable nor necessary.
The Employee won a SIME order.
Summary: If it all kind of sounds the same, that's because it is. The insurance companies, Liberty Mutual and its subsidiaries know they can rely on a report from Dr. Bauer saying what they want to hear: that the Employee wasn't hurt at work at all, or if s/he was, s/he has recovered and needs no further treatment and can go back to work.
Keenan Powell has practiced Workers Compensation law in the State of Alaska for over 35 years and has dedicated her practice to Workers Compensation representing injured Alaskans handling hundreds of cases. www.keenanpowell.com.