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Practice Tip #4: Refuting CE Exams

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An interesting response to a question in the NADR forums that may be helpful for new reps...



This is an administrative proceeding, so getting the CE report excluded is almost impossible, unless you can show fraud, bias, lack of qualifications, etc. 
But it doesn't hurt at all to file a written objection.
Remember, too, that if the ALJ asked for the CE, then the ALJ is probably looking for some reason to deny. So you have to make as good a Record as you can, to give a Federal Court good reasons to reverse and remand.
First, research the CE's qualifications, status of license, status of board certification, and see if there are any complaints or grievances filed.  The state licensing agency should have some records. Review this talklist because there have been several past discussions of ways to check a doctor's qualifications.
Second, review what the CE did, what tests were administered, how they were administered, etc. Look for any improprieties.  Look for tests which are typically administered for patients with the client's diagnoses, and see if the CE failed to administer any of them.. Cite the medical literature describing what tests should have been given.
Third, be sure to address the expected rise in test scores when tests are administered a second time.  When did the TP administer tests?  Cite the literature showing that the CE's test results may not be valid because of the expected rise in scores or results.
Fourth, there are some tests which are used to show malingering  or not honestly describing symptoms.  Did the CE administer these tests, and if not, on what basis did the CE reach her conclusions?
Fifth, as someone else advised, be sure and send the CE report to the TP along with your letter telling the TP that the CE is essentially calling the TP a liar, incompetent to make a correct diagnosis, etc.  Ask the TP to write a response.
In addition to the written objection, submit your memo raising ever possible argument against giving any weight to the CE.
Supplement the Record with sworn Affidavits from the mother, sister, and anyone else, refuting the CE's finding that the client is independent.  Be sure they give examples of what happens if the client is allowed to manage money.
Charles Pirro
Norwalk, CT



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