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

SB 899 is now the law and our jobs will never be the same. The way we handle claims is going to be totally different. Here is some of what has past through committee into law.

The way a delayed claim is now handled is totally different especially with regards to our medical discovery. We can no longer schedule our own medical evaluations to determine whether the injury arose out of or in the course of employment. Under 4062.1, which went into effect immediately, we have to send the employee the forms to request a panel QME. The employee has ten days to make the request. If the employee does not send the form in, then we can send it in for him or her. If the employee does not pick a doctor off of the panel, we can.

Now we get the exam set, the next thing we have to do is send the employee all of the information we intend to send to the doctor at least 20 days before the examination is take place. The employee can object to any non-medical information, and if it is objected to, it doesn’t go to the doctor. This means that when you get that investigation report with the witness statement that contradicts the claimants version of the mechanics of injury that would enable the denial of the claim, the doctor does not get to see it if the employee objects. The only way the doctor would get it now about is through deposition.

And we still have to do this within 90 days (like this will happen with all the turmoil in the AD’s office since we now have a new AD with no comp experience)!

Many companies are in a quandary on how to implement these new laws. Share with us how you are complying with the new laws. Give us your best suggestions or horror story.

Please e-mail at bill@siennastaffing.com.

By Lori Webb, D.C., Q.M.E.
drwebb@adjustingworld.com

That question has been debated among adjusters, case managers, Primary Treating Physicians, and even lawyers. I, being a chiropractor, am frequently divided on that question. Having been in practice, I know what struggles Treaters face. Yet, as a case manager, I see the abuse on a daily basis. Those on the applicant side of the fence will tell you that chiropractic is the best thing about the Worker’s Compensation system. Those on the defense side will say that chiropractors are abusive in their handling of the worker’s compensation patient. I feel that chiropractic does have a place but oftentimes chiropractors treat excessively or keep treating a condition that is not resolving.

Chiropractic is great for treating basic musculoskeletal injuries. ACOEM Guidelines agree that manipulation has proven beneficial in the first few weeks of treatment of low back pain. Common injuries that chiropractic can help are cervical sprains, thoracic sprains, and lumbar sprains. These types of injuries commonly occur with lifting injuries, slip and falls, and car accidents. Chiropractic helps the most initially after the injury occurs and its success decreases as the injury ages. Manipulation combined with physiotherapy modalities help to decrease inflammation and speed the healing process. More severe musculoskeletal injuries, such as moderate to severe disc protrusions tend to improve with orthopedic/neurologic care rather than chiropractic manipulation.

I’ve found that chiropractic is less helpful for repetitive stress injuries. These types of injuries include Carpal Tunnel Syndrome, lateral epicondylitis, myofascial pain, or a chronic spinal complaint. Chiropractic may help initially but after about 4-6 weeks of treatment symptoms plateau and care after that point seems more palliative that curative. Conditions such as these respond better to active types of treatment, such as physical therapy, where the injured worker takes an active role in the healing process and learns self care measures to use when symptoms are present. Injured workers with repetitive stress injuries tend to become dependent on passive chiropractic care and modalities rather than active care. When the case has arrived at this point, it is very difficult to move the case in a different direction without opposition from the Treater and the injured worker.

Chiropractors should never treat conditions other than those that are musculoskeletal in nature. I was speaking with an adjuster today that had a chiropractor treating an umbilical hernia. Another file came into our office with a chiropractor treating a hand laceration. These sorts of injuries require medical attention and have no place in the chiropractic office.

Chiropractic does have its place in the worker’s compensation setting. Just like orthopedists and neurologists have their place. The key is determining if the diagnosis is one that is appropriate for the chiropractic office. Make sure the diagnosis matches the treatment being provided. Chiropractic’s niche in the worker’s compensation system is a vital one. Chiropractors provide an essential type of treatment that no other specialty can provide which has helped millions of injured workers in California.

About the author: Dr. Webb is the Supervisor for Chiropractic Field Case Management for Professional Dynamics, Inc. Professional Dynamics is a California based company that provides chiropractic case management, nurse case management, and utilization review services.

Alan C. Roth, MD JD
drroth@adjustingworld.com

Q: How can a physiatrist (specialist in physical medicine and rehabilitation) assist in implementing the ACOEM guidelines?

A: The ACOEM guidelines have recently been implemented in the State of California for workers’ compensation cases.

The goals of the guidelines are to promote minimization of absence from the workplace, which has been shown to be detrimental to a person’s mental, physical and social well-being. The policy encourages returning to work in order to “enhance recovery, reduce disability and minimize social and economic disruption.”¹

The guidelines further suggest that it is the physician’s role to communicate between the patient and the employer medical concerns and to facilitate return to the highest level of function in a timely manner. ACOEM further notes that by setting clear expectations for recovery with patients there is a somewhat higher level of obtaining higher goal. By minimizing the period of disability there will be a more stable work force and less demands on the health and social services, as well as disability plans.

The physician’s treatment plan is to identify the best sequence and timing of interventions for the patient. The physician should facilitate the patient’s return to work and activity by encouraging communication between the patient and employer early in the treatment or rehabilitation.

Physical and functional limitations or restrictions need to be considered by the physician including existing constraints on the employee’s physical or mental capability to perform tasks. Restrictions to prevent further injury or foster recovery are necessary to identify and a ACOEM recommends that setting of limitations and restrictions should be based on objectively determinable findings to the maximum extent possible.

ACOEM Guidelines further are to be applied to diagnostic testing and effectiveness of all treatment in relieving symptoms and achieving a cure. In order to determine the resolution of these issues evidenced-based medicine is to be used.

As you recall, a physiatrist or specialist in physical medicine and rehabilitation is one who through his training and experience becomes an expert in evaluation of limitations and functions resulting from, among other things, injuries and illnesses. The illnesses may include strokes, musculoskeletal injuries, nerve injuries or other types of trauma.

Specific symptoms such as pain or loss of range of motion are evaluated in terms of how it affects the level of function—whether it be occupational or otherwise.

Restoration and maximization of level of function is provided through a team approach with whichever types of therapists and other team members are necessary. This may include physical therapists, occupational therapists, psychologists, other physicians, etc.

Further, in the case of neurologic injury, testing such as EMG and Nerve Conduction Studies will assist with determining the type of injury present or absent neurologically and would allow the physician to formulate an appropriate rehabilitation plan.

Procedures such as trigger injections, epidural blocks, prescription of functional capacity testing, when necessary, will assist in return to the highest level of function in the shortest amount of time generally.

The physiatrist, in general, will be attempting to return the patient to work as soon as medically reasonable which is well within the guidelines of the ACOEM.

Of course, these guidelines are open to some interpretation both on the part of the injured worker as well as the payor. Abuse is occasionally present on both sides. A physiatrist, however, working in good faith will assist with the restoration of health, optimize functional capability and minimize destructive impact of the injury or illness on the patient’s life in order to return all possible functional activities relevant to the patient’s life as soon as possible after an injury or illness. Otherwise, clear expectations for recovery with the patient can be set by a physician capable of working as part of a team such as a physiatrist with training in orthopedic, occupational, neurologic and general medicine.

These are the stated goals of ACOEM and largely are part of a physiatrist’s practice.

It remains to be seen, however, if the guidelines will be implemented, although these stated goals are certainly reasonable.

Alan Roth, MD JD

Dr. Roth is a physiatrist in the East Bay and performs EMG and Nerve conduction studies as well as treatments and evaluations. Questions may be submitted by e-mail to Dr.Roth@Adjustingworld.com.
¹ ACOEM Board of Directors Correspondence, April 14, 2002.

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

While all the focus has been with the Legislature and the Governor, the Boards and Courts are still making decisions, here is some of their doings this month ….

The Benefit of the Bargain

The Third District Court of Appeal annulled and remanded a WCAB decision from Stockton, County of San Joaquin v. WCAB (Sepulveda) 69 Cal Comp Cases 193. At a Settlement Conference, the parties entered into a Compromise and Release with the following language, “Permanent Disability of $2,442.87 will be deducted, leaving a balance of $21,557 less approved attorneys fees, less credit for further PDA subject to proof” The bolded words had been hand written on the form.

Applicant and the Workers Compensation Judge contended that the word “further” was ambiguous and that Defendants should do the accounting at the time of the Settlement Conference.

The Court of Appeals disagreed. A specific amount had been stated and that Board erred as a matter of law as the defendant was deprived his “bargained for term.”

Fifth Amendment Privileges

A Writ of Review was denied in the Save A Lot v WCAB (Villanueva) 2004 Cal App Unpub 3724. The parties had entered into a stipulation that the Applicant had “sustained an industrial injury arising out of and in the course of his employment to his back and neck..” They requested a credit or restitution for the advanced disability payments based on fraud. They offered a sub rosa video as evidence. The Applicant, who was the subject of a district attorney’s investigation for workers compensation fraud, refused to answer any questions at the disability hearing based on a Fifth Amendment privilege. Defendant asked the Judge to draw an adverse inference against the applicant because of his refusal to testify.

While conceding that the Fifth Amendment privilege is not absolute in a civil proceeding and the Judge could have made such a finding, the Third District Court of Appeal relied on the Judge’s recommendation and findings in that the defendant had not met their burden, even with this inference to prove fraud. The Judge had said that in her view the tape, no fraud had been established. She had taken the matter off calendar to have the doctors reassess their opinions in light of what the tapes had shown.

Temporary Disability – Seasonal Workers

Applicant was a seasonal worker and sustained an injury while on her job. She sought temporary disability for the “off-season”. The Workers Compensation Judge agreed with the defendants and denied her temporary disability for that period based on the report from the AME and her failure to provide credible testimony about seeking employment in the off-season.

In Acosta v. WCAB (Basic Vegetable Products), 2004 Cal App Unpub 3686, the Fifth District Court of Appeal noted in its denial of the Applicant’s Writ of Review that standard set forth in Jimenez v. San Joaquin Valley Labor (2002) 67 Cal Comp Cases 74 had not been met. They stated that “an injured worker was not entitled to temporary disability benefits where there was no evidence of earnings during the off-season or that she would have worked had she not been injured.” Applicant in past years had collected unemployment in the off-season and had not sought employment. Her testimony to the contrary at the Trial lacked credibility.

CIGA doesn’t have to pay EDD liens

CIGA v EDD, 69 Cal Comp Cases 183. The Second District Court of Appeal reversed the WCAB and held that the EDD claim for reimbursement for benefits from the insolvent carrier is not a “covered claim” pursuant to Insurance Code section 1063.1(c)(4).

Sub Rosa Tapes

Forsythe and Associates v. WCAB (Taylor), 2004 Cal Wrk Comp Lexis 90, involved a sub rosa tape being sent to a Panel QME for his review and comment. The defendants failed to deliver the tape to the unrepresented applicant prior to delivery to the doctor. To make matters more curious, when the applicant did get the tape she submitted it to a video tape analyst who reviewed the tape and scanned a new version. Defendants were not provided with a copy of the analyzed version.

The Workers Compensation Judge excluded the Panel QME’s report based on their failure to follow California Labor Code section 4062.2 which provides that all material submitted to the Panel QME must be submitted to the applicant at least 20 days prior.

The Third District denied defendant’s Writ of Review and let the Judge and WCAB’s orders stand.

The Evaluation of Permanent Disability California Legislature – Bill Text SB 899

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

I want to provide you with a quick summary of changes to current and upcoming regulations from the perspective of A Permanent Disability Rating Specialist. This is not meant to be a complete summary of changes. ‘Click on California Legislature- Bill Text SB 899 for a full text of the summarized items, etc. Tables and charts will follow once the Administrative Director (AD) Provides Wage Loss formulation and other pertinent guidelines.

The rating and determination of Permanent Disability (PD), based on current evaluation guidelines by the DWC’s Medical Unit and The Schedule for Rating Permanent Disabilities (The Schedule), remains the same until such a time as the New Schedule For Rating Permanent Disabilities is in place.

Any changes dealing with (PD) ratings and its determinations will be prospective for dates of injury on or after the Schedule change, with some clear and noted exceptions referred to in L.C.S. § 4658(d) and L.C.S. § 4660(d):

For pre-4/30/04 DOI's, the new Schedule will not apply if there has already been a med-legal report, or an obligation to give notice under LC 4061 before the effective date of the Schedule.

“To paraphrase the principle of both sections: if one's med-legal report precedes the effective date of the new schedule, then he or she falls under the old Schedule. If the new Schedule becomes effective before a med-legal report is issued, regardless of DOI, then he or she falls under the new Schedule.” - Blair Megowan, Manager - Disability Evaluation Unit

For any P&S medical report that is prepared after 04-19-2004 at 2pm, the change that is effective immediately is that The Apportionment of PD shall be based on Causation as per Amended L.C.S. § 4663 & New L.C.S. § 4664

L.C.S. § 4663 & the new L.C.S. § 4664 must be applied together. It is essential to know the specific region of the body that was rated and what was rated. We must make sure that there is overlap between the current disability factors and the prior rated factors. You can only ‘factor-out’ overlapping disability. Thus clearly stated on page 1-10 of the Schedule you can have: no overlap, partial overlap or total overlap. That is why L.C.S. § 4664(c)(1) defines the various regions of the body for which a 100% of permanent disability can be obtained.

Once apportionment has been addressed based on overlapping factors, there could still be apportionment to causation of the current disability. Since L.C.S. § 4664(a) states that: “The employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment.”

Effective immediately: be it a private rating or state consultative rating, it is essential that we be clear and/or that we request clarification for any rating determination that does not plainly outline the disability factors being rated as per the defined regions of L.C.S. § 4664.

**Comparison charts for SB 899 can be found on WWW.PDRATINGS.COM

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