Things You Should Know About Your Orthopedic Evaluation

• Oct 13, 2025
• Blog
• Michael Burgis & Associates, P.C

Preparing for a neutral orthopedic evaluation is one of the most important steps in your workers’ compensation case. The outcome of this medical exam can significantly impact your benefits, settlement, and access to future medical care.

I’m Michael Burgis, managing attorney at MB&A and a certified legal specialist in California Workers’ Compensation. At our firm, we believe in being proactive—because the better prepared you are, the better your results will be. In this blog, I’ll walk you through how to approach your neutral orthopedic exam with confidence: from understanding what the doctor’s role is, to what to say (and not say), and how to ensure your credibility and medical evidence are as strong as possible.

Transcript:

Hi, my name is Michael Burgis. I’m the managing attorney of MB&A, and if you’re getting this video, it’s because you’re about to see a neutral doctor, in this case, an orthopedist. And I wanted to take a few minutes to prepare you for that evaluation.

Typically, I find that most law firms don’t do this, but here at MB&A, I find it’s better to be proactive than reactive. Because at the end of the day, the better the information is going into the doctor, the better the report is coming out.

Preparation for a Neutral Orthopedic Evaluation

Let’s take a few minutes and prepare you for this neutral orthopedic evaluation. First, before I go into the specifics and some advice, let me build the foundation. Remember that in California workers’ compensation, the vast majority of the settlement value of your case is based on two fundamental things: one, compensation for permanent disability; two, entitlement for future medical care.

At the end of the day, I’m not a doctor. Neither are the attorneys and the team here at MB&A.

The opposing counsel, likely not doctors either. The workers comp judge, not a doctor either. Just remember, everything comes down to the medical evidence here. So again, the better the information is going in, the better the report is going out. And that report is really the evidence I have to go in and fight for you and advocate for you.

Okay. So first bit of advice. This neutral doctor you’re going to see, doesn’t work for me, doesn’t work for the insurance company, and is theoretically neutral. This is the judge when it comes to the medical determination of whether you’ve sustained an industrial injury and what your disability is and your compensation is based upon that.

So, again, the ultimate goal here is that this neutral doctor just likes you and hopefully feels sympathetic for you and really wants to write a good report for you because they want to see you do well.

Arrive On Time

So a few bits of advice. First, be on time. I can’t stress this enough. This is the judge. If you show up late, that judge will likely be a bit upset with you and definitely less apt to want to help you out. So be on time.

Be Polite and Respectful

Now, the doctor might leave you in his lobby for an hour before he sees you. Don’t let that upset you. Don’t pop off to the doctor or be rude or condescending. I don’t care how frustrating it is for you. Kill this doctor with kindness. Be polite. Be respectful. Again, this is the judge. And we want the judge to issue a good report for you.

Pain Medication

Next. I tell my clients to avoid taking medications before this evaluation. Let me be clear. Pain medication, anti-inflammatories, things that might cope or cover up your true pain. By all means, take whatever medication you need to take, including pain medication. But I generally tell my clients, avoid taking pain medication, even over-the-counter stuff like Ibuprofen or Tylenol, because this doctor is going to do a range of motion measurements and a few things. And if you’re on medication, it’s going to look like you are less disabled then you truly are.

So, again, show up on time. Don’t take pain medication. Now, be polite and be respectful no matter what.

Represent Your Situation Accurately

Now, there’s also two ends of the spectrum that I don’t want you to be on. One end is the stoic, macho, the person that minimizes, “Oh, I’m fine. I’ll live. Life goes on.” Don’t be that person. The other extreme is exaggerate. “I can’t do anything at all anymore.” Don’t be that person either. And I’ll explain how and why in a second.

First, the squeaky wheel does get the grease. Remember, at the end of the day, your disability is based upon how your injuries affect you in what’s called the activities of daily living. So if you tell a doctor, I could do everything just fine, I have no impacts on my ADLs, my Activities of Daily Living. Guess what? You have 0% impairment and your case is probably worthless at that point. So the squeaky wheel gets the grease.

Any pain, any symptom. Tell the doctor that. But again, the other spectrum that I don’t want you to be on is the one that’s exaggerating. Don’t say that you can’t do things that you can, or that you don’t do things that you do.

Because, for instance, let me tell you what I see all the time. Bad back injury. Doctor leaves my client in the lobby for an hour. Client comes in. Doctor says, “Do you have pain when you sit for prolonged periods of time?” “Of course I do, ” client says. Doctor says, “Well, how long can you sit before the pain is unbearable?” “5 minutes.” But the doctor saw you sit in the lobby for an hour without any pain or difficulty.

So again, don’t say you can’t do things that you can or that you don’t do things that you do, because then it’s going to compromise your credibility.

And here’s the thing about injuries and pain. Pain is subjective. Nobody truly knows the amount of pain you’re in other than you. And as soon as your credibility is compromised, your case is very much harmed because without you being credible, we cannot get an award based on that pain.

So, again, be polite, be respectful. Don’t minimize. Don’t exaggerate. Be 100% honest. Don’t think, well, they’re not going to know about this, so I’m not going to disclose this. Remember that ultimately you need to be honest about everything. All prior injuries. Be honest about it.

Typically, what happens is the defendant will subpoena all your medical records through your Social Security number. So this doctor is going to be provided very likely your whole history of medical treatment. So if they ask you, have you ever had a prior injury, this body part, and you say no. And they see treatment records that you have. There goes your credibility again.

Again, be polite, be respectful. Don’t minimize, don’t exaggerate, but be 100% honest. Don’t purposely fail to disclose a prior injury or prior treatment because they will find out about it.

And just so you know, just because you have a prior injury doesn’t mean you don’t have a valid worker’s comp claim. All we have to do is show an aggravation of the prior injury or maybe that prior injury went on to have a full recovery. So this new injury is 100% responsible for the disability.

Not That I Recall vs No

At the end of the day, remember this, that you might also get a call from the doctor’s office, their medical historian, and they might ask you about these things prior to the evaluation. Again, be honest. Don’t fail to disclose something, you know that was there. If you don’t remember, it’s okay to say I don’t remember. Hey, have you ever injured your back before? If you honestly don’t remember, you say, “Not that I recall” versus “No.”

I rather say not that I recall, because if they find some treating report, we could just say that my client didn’t, they weren’t specifically saying no, they just said they didn’t recall it at that time.

Good Days and Bad Days

All right. Now, ultimately, I like to hedge things, too, on having good days and bad days. So if you say things like “I can’t ever do this” or “this is so excruciating, I don’t do this.” You know that puts you into a box. And then all the defense has to do is go get surveillance video. If you get caught doing what you say you can’t do or that you don’t do, well, now you’re lying and there goes your credibility.

So focus on good days and bad days. I generally avoid saying the word I can’t or don’t. But you can say on a bad day I can’t. Or on a good day I can. Right. So if you talk about on a bad day, this is what I look like. And on a good day, this is what I look like. If they get surveillance and you look like you’re doing well, guess what? That’s a good day. So I do like to hedge it by talking about good days and bad days.

Ultimately, the goal of this report, again, is to get the best medical evidence, find the greatest amount of disability and the greatest need for future medical care.

Questions About Future Medical Care

Here’s another issue that comes up. A doctor will say, “Do you want surgery?” And my client will say, “No.” That’s a mistake.

Let me explain. At the end of the day, the valuation of your case comes down to permanent disability entitlement for future medical care. So I want to make the argument that you might need this surgery. So even if you don’t want it now, I want to make the argument that you might need it in the future and that that’s going to cost the insurance money and that they should put some valuation or consideration for that potential surgery in a settlement.

But if you tell a doctor you don’t want it and you’ll never have it. And that’s in the medical report. Well, now the defense knows that. Now, when I say, hey, my client might need a fusion surgery going forward, that’s expensive. You need to put some valuation for that. They’re going to say, nope, I know the client’s never going to have it.

So again, nobody can force you to have a surgery you don’t want. If you don’t want a surgery or a specific treatment, it’s okay. You don’t have to say you want it if you don’t want it. Just simply say, I don’t want it at this time. But I do think that I might have it in the future, and I would like provisions for it in the future. Be very careful how you articulate that.

Summary of Advice for Your Orthopedic Evaluation

Just to reiterate, one last time and then I’m going to get into some specifics here. General rule. Show up on time, be early, be polite and respectful to this neutral doctor, even if you think they’re being rude, condescending, belittling, kill them with kindness. Be 100% honest. Don’t minimize, but don’t exaggerate. Avoid taking pain medication if you can.

Disclose All Symptoms, Even If Outside of Doctor’s Expertise

Now, ultimately, remember this. The doctor you’re going to see in this case is an orthopedic surgeon or an orthopedist. However, don’t forget to disclose everything, all of your symptoms to this doctor, even if it’s outside the scope of their expertise.

For instance, if you’ve gained weight and now you have internal problems, upper or lower gastrointestinal issues, gastritis, stomach problems, constipation, blood in the stool. If you’ve gained weight and now you’ve been diagnosed with diabetes, hypertension, this is important. If you’re having stress, depression and anxiety, neurological issues, rheumatological issues, whatever is going on in your life that you believe is causing injury and you think it’s related to this case, tell the doctor about it. Even if it’s outside the scope of their expertise, because what they can do is they can say, “Well, the client is discussing internal issues or psychological issues and these should be deferred to another neutral doctor outside the scope of my expertise.”

Again, the goal would be to get a report back from this doctor finding the greatest injury to the greatest body parts with the greatest overall permanent disability, the greatest need for future medical care, and also saying that these other doctors need to see to evaluate the client’s whole bodily injury from this industrial injury.

AMA Guides to Determine Disability

Now, let’s get into some specifics. This book is called the AMA Guides. This book is basically what the doctors are using to address what your disability is. Now, prior to 2005, in something called Senate Bill 863 and 899, your disability in workers comp was based on work restrictions. The laws have changed.

Ultimately, I don’t care about work restrictions so much for that compensation on permanent disability because your permanent disability again is based on this book called the AMA Guides. So it’s possible to have no work restrictions and high disability or inversely, no disability and high work restrictions. Ultimately, be honest with the doctor about your ability to work and those work restrictions. But for the most part they’re inconsequential. Now, at least, unless it’s a rating of 100% disability and vocational stuff.

But your disability is based upon this book. Now, what this book does is this. It takes objective factors of injury. What is that? MRI’s, endoscopies, X-rays, diagnostics. It’s the objective things that are not subjective. That’s the diagnostics. Then it takes your subjective complaints and then it compares those subjective complaints and the objectives and looks at what’s called the Impacts of the Activities of Daily Living. And that will literally put you into a rating in this book.

Now, I’m ultimately going to go over a few of the very common rating things I see. Keep in mind that this is a generic video for my clients. So if these body parts don’t apply to you, don’t worry about it. And our office can do a more itemized or individual preparation as well.

Spasms and Knots

But, if you’ve injured your neck, your mid back and your lower back, that’s your cervical, thoracic, and lumbar. It’s very important that you realize some key words. If you have any muscle spasms, like a knot. If you have spasms or a knot, those are very important to educate the doctor on.

Current Pain and Symptoms

Now, also, the doctor is likely going to ask you what your current pain and symptoms are. Current. Now, some of my clients will mistakenly believe that means that second, at that evaluation. It doesn’t mean that. Treat the word current as in the last month or so. So if that moment you don’t have a muscle spasm, you know, don’t forget to tell the doctor, well I frequently get muscle spasms.

If that second, you don’t have numbness or tingling traveling down, or you don’t have a specific pain, but you’ve had that in the last month, tell the doctor about everything in the last month. The word current means the last month.

Numbness and Tingling

Okay, now, spine. Focus on muscle spasms if you have it. Another thing is, it’s a word that most lay people don’t know, but it’s called radiculopathy. Radiculopathy deals with numbness, tingling, radiating pains. Now, if you have a cervical injury, again, your neck, those radicular pains will go down your hands. If you have a mid back injury, they could go up to your arms or down to your legs as well. And if you have a lower back, it’s down your legs.

So just remember this. You’ve got nerves traveling from the base of your brain down your spine. And again, they go through the neck to your hands, through your lower back, down your legs. Now, when there is entrapment on a nerve or a herniated disc is impinging on it, you can get what’s called radiculopathy. This is numbness, tingling, and radiating pains. This is very important. If you have any numbness, any tingling, any radiating pains, whether they’re constant or come and go, you must tell the doctor about this.

Now, if those radicular complaints are verified by another diagnostic called the EMG or another method, that can increase your disability.

Range of Motion

Now, ultimately, another real important factor for all of the spine, but for pretty much every other body part is range of motion. They will utilize something called an inclinometer. It’s a little tool. What the neutral doctor is supposed to do, sometimes they don’t do it, is they’re supposed to take a warm up. They’re supposed to take three measurements and basically take an average of that. And it should be statistically valid. But those range of motion measurements are important because that is a huge part of how they rate your disability.

So any painful range of motion or any of that range of motion, make sure to give the full force on it because you know, they’ll know when you’re lying or not giving the full force. But if it’s painful, tell the doctor about that. And this is again, why I don’t want you to take pain medication or even over-the-counter Ibuprofen, because if you take that, it’s going to look like you have better range of motion than you really do. And you’re going to get a report that’s going to be to your disadvantage.

Compensating with Opposing Body Part

Now, ultimately, weakness, instability, walking problems, gait problems, these are all important key words. If you’re injury is on one body part, like the left arm, and you find that you’re overcompensating on the right or the opposing appendage, a left leg and a right leg. When you find that you’re overcompensating and you’re starting to feel pain and symptoms or weakness on the opposing body part, tell the doctor about that.

Again, instability, ambulating, if you walk and you feel like a leg is going to go out or in the case of it’s an upper extremity, you’re dropping things. You know, this is all really important to discuss.

Conclusion: Neutral Orthopedic Evaluation

All right. So a fairly lengthy video here, and I hope it’s been very helpful. I want you to take a deep breath, relax a little bit, and understand that you seeing the neutral doctor is fundamentally one of the most important steps in your workers’ comp case. If your claim is denied and you see this doctor, you might be able to get the claim picked up immediately after the doctor finds this. Sometimes it takes a little bit of a battle.

If your case is accepted, but body parts are being disputed, well, this doctor might find those body parts industrial and be able to get those claims formally accepted and medical treatment provided.

The last thing I want to end with is this: for us at the firm, in order for me to go and effectively make a demand, try to settle your case and/or go to trial on your case, I need final medical evidence. What that means is, that report needs to determine that you’ve reached your point of what’s called maximum medical improvement, and you’re what’s referred to as permanent and stationary. And that doctor will address all the final issues that I need to be addressed.

Again, to reiterate, what body parts are injured, on an industrial basis, what your respective disability is, whether there is apportionment to non-industrial or not, and what your future medical needs are. That’s basically what the doctors are addressing.

Now, the problem is, is if you’re early on in your case and you haven’t got the medical treatment you need, that doctor will likely say, listen at this point, the client is not at their point of maximum medical improvement. They need the following treatment outlined and then I will see them back after that evaluation to determine if they’re at their point of maximum medical improvement and address the final issues at hand.

So, for instance, if you say, “Yeah, I want surgery,” and the doctor thinks you have surgery, that doctor is going to say, “Okay, here are the body parts that I believe are industrial, but I’m not going to address the disability because this person needs surgery.” That will delay your case.

Now, if you are hoping to get your case resolved, tell the doctor that, “Look, Doc, I know I probably need some more treatment, but I’m so fed up of the workers’ comp system, I really just want to get a final report so I can get my case adjudicated and settled and moved on with my life.”

Talk to the doctor about what your goals are if your goal is to get surgery and medical treatment. Talk to him about that. If your goal is to get your case settled, talk to him about that. That will increase the probability that that doctor will find a final report to address our contentions.

Ultimately, at the end of the day, whether you’re at your point of maximum medical improvement is a medical determination, not not a legal one, and definitely not my lay opinion. So just remember, ultimately, I find that these doctors generally want to help injured workers. And if you say, “Hey, listen, doc, I just want to get back to work,” You know, that doctor will probably minimize those work restrictions to let you go back to work. If you’re like, “Doctor, I don’t think I could ever go back to work. They’re not accommodating me. I’m just getting worse.” Well, that doctor will probably provide such high work restrictions that the employer will not be able to accommodate. And you may be able to get laid off and get unemployment.

If your goal is to get your case resolved, that doctor will likely try to issue a final report to give us what we need to do our job. If you want surgery, maybe that doctor goes in and advocates for how and why you need that surgery.

Contact MB&A About Your Workers’ Comp Orthopedic Evaluation

Here at MB&A and I just want to go a step above our competition and take the time to do these preparation videos, because, again, the better the information going in, the better the evidence coming out. And that evidence is what gives us really the ability to fight and advocate on your behalf.

Hope this has been helpful. If you have any questions or concerns, feel free to call us. And we could always do a more individual assessment on your case. I look forward to taking care of you and I look forward to that light at the end of the tunnel.