Andrea Collins
President, Sienna Staffing
andrea@siennastaffing.com

Yes, it's true; Bill Nathans is now the Editor of Adjusting World. No, I'm not going away. I will continue as publisher and occasional contributor.

I've enjoyed my work as editor, but the best part was working with such talented writers. Every time I've talked to people in the community I am told over and over again how relevant and informative our content is to the insurance community. It is our contributors' dedication to education and the written word that has made a difference.

As we begin our second year of publication under Bill's direction, Adjusting World will continue to expand its message to the California insurance community. Please join me in welcoming Bill to his new position.

William Nathans
Senior Claims Examiner
Athens Administrators
bill@adjustingworld.com

What Has Survived The Clean-Up

It is hard to believe that we have been putting out this newsletter for a year now. It has been a year filled with changes in the worker’s compensation system. And the changes are still coming.

The clean-up legislation has passed its first hurdle. The bill is now on to the Appropriations Committee. The law as it stands now would make significant changes of last year’s reforms.

Among the provisions is a change to the limitation in chiropractic and physical therapy visits. Instead of 24 chiropractic visits or 24 physical therapy visits, the change be to 24 chiropractic and 24 physical therapy visits

The old vocational rehabilitation system would be reinstated for injuries prior to 1/1/04.

It would also clarify that the ACEOM guidelines are just that, guidelines in determining extent and scope of medical treatment.

Senator Ross Johnson has introduced a bill that incorporates many of the Governor’s proposals. This bill would repeal the one change of physician provisions and the liberal construction mandate.

It would alter the way permanent disability is rated. It would require that ratings be based on a preponderance of medical evidence based on objective findings and only if certain criteria are met. It does not define the “certain criteria”.

It would also define permanent and stationary to mean based upon objective findings of medical evidence, no further material medical improvement would reasonably be expected from additional medical treatment or the passage of time.

Stay tuned for further developments.

Please e-mail at bill@adjustingworld.com with your comments.

Luis Pérez-Cordero, MA, AAPMR
Permanent Disability Rating Specialist
pdrating@pacbell.net
WWW.PDRATINGS.COM

Important Key to Analyzing Confirming Industrial /Competing Causation Factors, helping identify job modifications, Determining the correct Group Number and level of functional loss for Permanent Disability.

Evidence Based Medicine / Assessment of Work-Relatedness

ACOEM Guidelines exist to improve the diagnostic process, the specificity of each diagnostic test and the effectiveness of treatment in relieving symptoms and achieving a cure. Industrial causation based on direct trauma is very straightforward. A complaint requires analysis to determine whether it is related to work, or the result of a combination of factors- some that may be work related.

The first element in seeking an association between a work-related health problem and a worksite factor is an accurate diagnosis. Evidence based medicine also requires that the treater address: the complexity of causation; work-related (vocational) factors, and personal (non-vocational) factors - thus the great importance of providing the treating physician with a proper Essential Functions Job Description and/or RU-91.

Treating physicians need to be very specific about the frequency, intensity, duration or purported ergonomic factors that might be associated with a specific case. Along with current California Code of Regulation Guidelines, ACOEM Guidelines provide guidance for (1) the formulation and clear communication of a worker’s ability to stay at work and/or return to work, (2) estimating work capacity functional loss and/or describing medical restrictions and limitations. All of the above must be addressed to help prevent delay-in-recovery and recurrences, as well as help distinguish chronic pain from work related problems.

Causation Analysis / Supplemental Job Displacement Benefits.

Functional restoration, more than any other area, requires a good understanding of the physical demands of the current occupation’s essential functions and activities from both treating and evaluating physicians.

Vocational Rehab Benefits under L.C.S. § 139.2 have been repealed. The injured worker no longer has to be classified as “QIW” to be entitled to new Supplemental Job Displacement Benefits. The need for job modifications and offers of alternative work accommodations require that the treating physician be provided with evidence-based job analysis/description addressing the essential functions & activities of the job. Whatever the basis of work capacity functional loss, job modifications or restrictions, it is necessary for physicians to state their sources of information.

Functional Limitations/Medical Restrictions & Permanent Disability 2

The strongest foundation in the correct determination of Occupational Group Numbers has always been the Job Analyses, Essential Functions Job Description and/or the RU-91. But as we integrate ACOEM Treatment Guidelines with the California Code of Regulation Permanent Disability Evaluation Guidelines, a new question can be asked: Are preventive ergonomic tactics part of the current job functions?

Occupational Group Characteristics & Permanent Disability Ratings

A well-rounded presentation by the Disability Evaluation Unit was part of the Division of Workers Compensation 11th Annual Conference. For Original Documents presented at the Division of Workers Compensation 11th Annual Conference: DWC Handout Materials - 11th Annual DWC Conference You can also download other handout materials dealing with the ACOEM treatment guidelines and the most recent list of cases related to all aspects of Workers Compensation.

Job/Group Classifications: http://www.pdratings.com/GroupNumbers.htm

The correct group classification helps us determine the appropriate modifications for the standard percentages of permanent disability. This is done to reflect the particular physical demands of any given occupation for the disability in question.

The group number is not based upon a "title." It is, however, based upon the duties and functions performed within a given group classification. The group classification for a general type of occupation considers characteristics dealing with the level of arduousness, standing/sitting requirements, demands addressing functions of both the upper and lower extremities, the spine, vision, hearing, etc. In general it considers the demands of the essential functions of the job. It is the ‘essential functions’ and activities of an occupation within a given industry that take precedent over the occupational title.

“If the occupation requires more than average use of the injured part, the rating is modified upward; if the injured part is relatively less important in that occupation, the rating is decreased. In order to make this adjustment, the appropriate occupational group must be determined.” Rating Schedule Pages 1-5 and 1-6

“The Dictionary of Occupational Titles (DOT), compiled by the US Department of Labor, was used extensively in the preparation of the Schedule and will frequently be of assistance in determining the functions of various occupations.” Rating Schedule Page 1-14

ACOEM Guidelines Preface, Lee S. Glass, MD / American College of Occupational & Environmental Medicine http://www.acoem.org
http://www.worklossdata.com/ (Information how to Obtain An Electronic Version of the ACOEM Practice Guidelines.)

Stephen L. Kline, Esq.
ARMSTRONG LAW FIRM
stephenk@arm-law.com

In the world of California Workers Compensation, March 1, 2004 looms as a date that could be very interesting as the diverse and powerful interests in the State work to meet the Governor’s deadline for new “reform”.

For now, the Courts and the Board continue to set forth the decisions, principles, rules, regulations and standards interpreting the “old reforms” with which we must make the rational day to day decisions on the challenging issues that we face.

In the past few weeks, the following cases have been decided, and should be of interest and assistance to you . . .

Temporary Agency Workers

The Second District Court of Appeals has granted a Writ of Review in the Miceli case, which undoes the 2003 WCAB en banc decision. The facts involve an insolvent carrier for a temporary agency who employed a temporary worker for the Company. The Temporary worker is injured on the job. The critical issue to be decided concerns whether CIGA will be forced to step in its place and cover the liability and compensation payable or whether the hiring Company’s solvent carrier is to be considered “other insurance” and is to be charged with the loss.

The WCAB en banc decided the latter option. Stay tuned . . . Arguments scheduled in June . . . This one will make some new law.

Testing 2003 Legislation

The extensive legislation enacted in 2003 had its first test in December. In Clayworth v. WCAB, 2003 Cal. Wrk. Comp. LEXIS 612, Mr. Clayworth, a licensed retail California pharmacist, sought a Writ of Mandate on Constitutional grounds asking the Court to stay the implementation of that part of the law which compelled the Administrative Director to limit injured worker’s prescription fees payments to 100 percent of the fees prescribed in the relevant Medi-Cal payment system. Without comment, the Court denied the Writ of Mandate.

You can check the regulated fee schedule at http://www.dir.ca.gov/dwc/pharmfeesched/pfs.asp

Psychiatric Claims

On January 9, 2004, the First District Court of Appeal announced its decision in the case, PG&E v. WCAB (Bryan) 2004 DJDAR 309. Mr. Bryan sought benefits for a psychiatric claim arising out of his work because his reassigned job within the company was stressful and increasing in stress because of downsizing. Further exacerbating his stress was the Chapter 11 bankruptcy of PG&E and that he had savings in stock in the company. Defense evaluator saw the applicant’s problems as related to “personal non-industrial stressors” which included several other highly personal psychological difficulties.

The Applicant’s evaluator was 180 degrees opposite in his opinion supporting industrial causation with no apportionment.

The WCJ ruled in PG&E’s favor as he found that the work stress was not the predominant cause pursuant to Labor Code sec 3208.3(b)(1). The WCAB upon presentation of a Reconsideration Petition reversed the WCJ.

The Court of Appeals held that the WCAB had erred in deciding that “downsizing” was an actual event of employment per Labor Code section 3208.3. If that was the case, then what employee would not have a claim? The Court further found that Mr. Bryan’s personal decision to invest his money in PG&E stock was not an event of employment that could validly support a psychiatric benefit award. Also, stress regarding retirement benefits could not support making his stress work-related.

“The Legislature has made quite clear that claims for . . . (psychiatric benefits) . . . must be evaluated under strict and exacting standards.” The Court reinstated most of the WCJ’s decision.

CIGA

In another recent CIGA related matter, the Second District Court of Appeal in CIGA v. WCAB (Gomez) 68 Cal Comp Cases 1852 denied a Writ of Review of the WCAB’s earlier decision. The Court reaffirmed the WCAB decision that in a single cumulative injury case or in successive injury cases, involving CIGA and another solvent carrier, CIGA will be relieved of liability UNLESS there is an approved stipulation, settlement or decision by a WCJ setting the apportionment of liability, which is now BINDING on the now-insolvent carrier and becomes CIGA’s liability.

However, absent extraordinary circumstances, CIGA is relieved of its duties to administer an Award.

Thank you for attention. If you have any questions or comments, feel free to email me at stephenk@arm-law.com or call at 408-279-6400

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