Death and SB 899

William Nathans
Senior Claims Examiner
Athens Administrators

We are now well into SB 899 and the in the duel role of trying to figure out the new laws while implementing them. Like everyone else, I’ve been thinking about new handling scenarios for claims that are coming across my desk and yes, I’ve noticed a real problem.

We now, as everyone should be aware of, have a new way of handling delayed claims for unrepresented claimants.

Under the new system, if a medical opinion is needed, we have to go through a panel QME. Well, what do we do with a death claim? Under the old rules, we investigate, get the medical records and send them to our doctor. Now, we have to obtain a QME to decide the medical issues. Question—who picks the QME? Do we get to pick the QME or does the dependant? What if there is more than one dependant? Also, do we have to send everything to the QME that we have sent to the dependants---all of them? The dependant has the right to object to any non-medical information and if it is objected to, we cannot send it to the doctor. What if there is more than one dependant, do we have to send the information to all of them? What if only one objects? Can the dependants make an appointment with the doctor in order to plead their case to support industrial causation? If so, what recourse do we have?

Can we send the investigation to the doctor after the initial examination/review? (oh boy another medical expense!)

And remember we only have 90 days to do this.

TWO MORE CENTS

The results of the April poll are in. I would like to thank all of you who took the time to participate. It appears that you the readers would like to see more opinion in the newsletter. I personally would like to see more of your opinions. I believe that it would be valuable to our readers if you would take the time to email us. We would appreciate your opinions, comments, strange or bizarre personal experiences in the world of workers compensation to publish in our Sounding Board section.

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

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

How appropriate are SB 228 and SB 899 in regard to chiropractic care? These bills were passed to control, among other things, delivery of chiropractic care within the Worker’s Compensation system. These laws have affected chiropractic dramatically and will change the field of chiropractic forever as it relates to Worker’s Compensation. No longer are chiropractors basing their practices on Worker’s Compensation patients. With these new laws, it has made it more difficult than ever for the chiropractor to treat within the Work Comp system.

These new laws have put a lifetime cap on chiropractic care. According to SB 228 a soft cap of 24 chiropractic visits and 24 physical therapy visits remain in force for injuries occurring on or after 1-1-04. The Payer can authorize additional visits if needed. Any visits above and beyond the 24 should go through Utilization Review (as all employers must have UR in place by 1-1-04). Once the 24 visit cap has been reached and additional visits have been authorized, then it becomes much more difficult to control treatment. Payers should be very careful in authorizing any additional treatment beyond the 24 without good cause. Additional treatment should be authorized only if other forms of treatment have been considered (orthopedic/neurologic) and/or diagnostic testing is positive.

For years chiropractic treatment has been relatively uncontrolled as the Primary Treating Physician retained the presumption of correctness. Chiropractors could treat for years with very little opposition coming from the Payer. Cases dragged out and billing was high for relatively minor injuries. Now ACOEM Guidelines retain the presumption of correctness (except in cases where the employee has pre-designated a personal physician or chiropractor per SB 228. However, per SB 899, a doctor of chiropractic is not considered a personal physician). Most treatment goes through utilization review and must be in accordance with the ACOEM Guidelines. ACOEM Guidelines are presumed correct regardless of the date of injury.

However, ACOEM does not have much to say about chiropractic except for the patient with acute low back pain. It does, however, discuss many modalities and therapies that chiropractors incorporate within their treatment plans. For injuries not covered by ACOEM, then authorized treatment shall be in accordance with other evidence based medical treatment guidelines generally recognized by the medical community. It is vital that a chiropractor performs the UR for treatment rendered by another chiropractor. Chiropractic UR is peer-to-peer and therefore an UR Chiropractor can apply treatment guidelines that are generally accepted within the chiropractic community.

It’s only been a handful of chiropractors that have taken advantage of the Work Comp system, but they have been the ones that have necessitated this Reform. Most chiropractors treat ethically and appropriately, delivering quality care to the injured worker. It will take years for all the kinks to be worked out in this new system through case law and “clean-up” legislation. Hopefully, as we try to understand and apply the new laws, the injured worker will be the one that benefits the most.

Next month we’ll go over some of the ways that chiropractors are dealing with the new laws.

About the author: Dr. Webb is the Supervisor for Chiropractic Field Case Management for Professional Dynamics, Inc. She also is an Examiner for the National Board of Chiropractic Examiners and a Qualified Medical Evaluator. Professional Dynamics is a California based company that provides chiropractic case management, nurse case management, and utilization review services. You can reach Dr. Webb at Drwebb@adjustingworld.com.

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

PREDESIGNATION, PRESUMPTION OF CORRECTIONESS AND THE AME/QME PROCESS

In the advent of SB 899, not only has the treating presumption been eradicated, but injured workers who pre-designate in writing prior to the injury can treat with their pre-designated physician if the employer provides non-occupational group health coverage. But before a pre-designation is deemed valid, the injured worker bears the burden to meet many requirements.

For instance, Labor Code §4600(d)(2) requires that a physician must agree to be pre-designated. Such physician must be the injured worker’s primary care physician, previously directed the medical treatment of the employee, and have retained the injured worker’s medical records, including his or her medical history. An intriguing requirement under Labor Code §4600(d)(6) is that the maximum percentage of all employees who are covered under Labor Code §4600(d)(1) that may be pre-designated at any time in the state is seven (7) percent! In theory, pre-designation appears to be within an arm’s reach, but in practice, employers may have more control.

There are also changes to compensability under Labor Code §4060, and permanent disability under Labor Code §§4061 and 4062. For instance, amended Labor Code §4060 does not apply to any part or parts of the body that have been accepted. But if a body part has been presumed compensable because the 90-day period has passed, does Labor Code §4060 apply? Moreover, medical evaluations for represented injured workers under Labor Code §§4060, 4061, and 4062 are governed under the procedures set forth in amended Labor Code §4062.2. But Labor Code §4062.2 only applies to injuries on or after January 1, 2005.

Disputes under Labor Code §§4060, 4061, and 4062 involving unrepresented workers will require a panel QME medical evaluation. Either party may submit the form prescribed by the administrative director to assign a panel of three qualified medical evaluators. If an employee has not submitted the form within ten (10) days after the employer sends the form to the employee and requests the employee to submit the form, then the employer can submit the form.

Under Labor Code §4062.1(c), an employee must select a physician out of the panel, schedule the appointment, and inform the employer of the selection and the appointment within ten (10) days of the issuance of the panel. If the employee fails to inform the employer of the selection within that time, then the employer has the power to select the physician from the panel. If the employee informs the employer of the selection within the time frame but fails to make the appointment, then the employer must arrange the appointment.

Query: What if the employee makes the appointment but fails to inform the employer? Does this mean the employer can choose a physician out of the panel? Which evaluator will the injured worker see?

VOCATIONAL REHABILITATION

Vocational rehabilitation benefits have been re-established for all injuries occurring before January 1, 2004, will be in effect until January 1, 2004, unless subsequently extended. For dates of injuries on or after January 1, 20044, the supplemental job displacement program continues to replace vocational rehabilitation benefits. Labor Code §§4635 through 4647 have not been re-enacted. Impact of both procedure and substantive handling of vocational rehabilitation will likely be subject to new legislation.

Return to Work Programs

Beginning July 1, 2004, to the extent funds are available, employers with fifty (50) or fewer employees may apply for reimbursement for workplace modifications to return injured workers to work. Reimbursements up to $1,250 for accommodations for a temporarily disabled worker and reimbursements up to $2,500 for accommodations for a permanently disabled worker can be requested by qualifying employers. These reimbursements will be funded by Labor Code §5814.6 penalties.

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

The window period started with the signing of SB 899 on 04-19-04. With some noted exceptions, the window will close when the New Schedule goes into effect.

PTP’s Permanent & Stationary Reports: DWC-PR-3 or Comprehensive Evaluation under 8 CCR § 9785(g).

Yes, The presumption of the PTP under 4062.9 is gone.

No, The reporting requirements for the PTP (§ 9785 ) are not gone. Neither are the WCAB evidentiary rules, under § 10606. If the medical evidence is ‘weak’ (i.e. supported only by the presumption of the PTP), a Panel QME evaluation or med-legal report could be in order.

SB 899 does not do away with regulations addressing the proper evaluation and determination of PD. The P&S report must be clear as to loss of work capacity, be it (1) objective physical findings, (2) disabling effects of pain, (3) work restrictions or a percentage of pre-injury capacity functional loss (LC§ 4620). Sections § 10606 & § 9793 continue to define what is a comprehensive medical-legal evaluation: an evaluation of an employee which (a) results in the preparation of a narrative medical report prepared and attested to in accordance with LC§ 4628, any applicable procedures promulgated under LC§ 139.2 and the requirements of 8 CCR § 10606, and (b) is either performed by a (QME), (AME) or (PTP). The examining physician must identify the findings, which support the opinion’s formulation as to the nature/extent/duration of Permanent Disability (if any), and the cause of the disability (Refer to: Medical Opinion As Evidence- "The Judge's Perspective").

Process for Choosing a QME and how to complete Existing Panel Request Forms

Yes, The QME Process is still valid - It is not true that it has been eliminated.
Yes, the DWC’s Medical Unit has issued a Bulletin to clarify how to request a QME Panel for the new procedures effective 4-19-04. With your usual notices, it is recommended that you include additional language advising the injured worker that: (1) you are objecting to the findings of the PTP, (2) there are now new time limits to complete the forms, (3) if the forms are not completed and returned to the DWC Med Unit within the required time periods, the claims examiner can request the QME panel. To include copies of your correspondence, with the EE to DWC’s Med Unit when requesting the panel, shows compliance with the time guidelines established by the new codes.

Credit for Overlap (Prior PD Awards)

No, The employer is no longer ‘burdened’ to prove that there was a continuing disability prior to the new disability awarded to the same body part.
Yes, A prior PD Award is now conclusively presumed to exist at the time of the subsequent injury. But you still need documentation proving its existence. It is not going to be strong evidentiary proof to say, “I paid an award in 1996, the file was destroyed, lost, or the award was paid by another carrier or employer. LC § 3202.5 now requires a balanced interpretation of the evidence presented to the court (Key: ‘evidence’ presented to the court). Documents supporting overlap must clearly show the rating formula and/or how the modified PD Rating Standard paid was calculated. For example, supporting documents could be the summary/consultative/private/formal ratings, Stipulations & Awards, Compromise & Releases, Report of Hearings, etc. If the award were based on a summary rating, the DEU keeps those files for a period of 2 years. The DEU can look up old claims by name or social security number.

We welcome your questions and recommendations as to which topics you would like me to address.

Results of the May Poll

Will the Reform Work?