William Nathans
Senior Claims Examiner
Athens Administrators

Let’s talk about another fun claims handling issue under SB 899.

As we all know, if a claim is delayed in order to get a medical opinion, we need to go through the panel QME process. But what do we do with a delayed psych claim?

The old process had us assign an investigator to take statements from the coworkers and supervisors. We would obtain the medical records and set up an AOE/COE evaluation in order to determine if more than 50% of the employee’s stress was work related.

Now, we assign the investigator, get the medical records and wait for the employee to request a panel Qualified Medical Evaluator. Once we have been notified of the appointment, we have to send all the information we intend to send to the QME to the employee, at least 20 days prior to the examination.

Guess what? The employee gets to object to any non-medical information. If they do, the material is not sent to the QME. Gee, if the only information the doctor gets is what the employee tells him or her, what is the opinion going to be? How many non-compensable stress claims do you think we will see?

Another issue with a psyche claim has to do with the medical information. What can we send to the employee? A lot of times the treating doctor will advise us not to release the information to the patient. If we cannot send the medical to the employee, can we send it to the QME?

In my humble opinion we are going back to the old days when it was real hard to deny a stress claim on a medical basis.

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

It seems like an odd question. Why would they? Chiropractors don’t prescribe medications, they don’t perform surgery, nor are they a “one visit and you’re cured” solution. From a defense point of view, chiropractors appear to contribute minimally to the recovery of the injured worker. However, chiropractors play a very important and vital role in the Worker’s Compensation system.

Chiropractic fills the gap between cases requiring minimal treatment and those requiring surgical intervention. Most Workers’ Compensation cases fall into this category as a great number are musculoskeletal in origin. Of those, the vast majority do not require surgery. If surgery is not indicated, then the orthopedic approach is usually medications and physical therapy. The chiropractic approach is somewhat different. Chiropractors are ideal in resolving these”middle of the road” type injuries. ACOEM Guidelines support manipulation for acute low back injuries. A chiropractor’s main tool is manipulation and they are experts at it. Chiropractors perform manipulation and most incorporate physiotherapy modalities/exercises in their practices. This allows the injured worker the benefit of chiropractic manipulation and the healing properties of physical therapy.

Many injured workers prefer a more natural approach to healthcare. These workers tend to have a more natural lifestyle. They tend to eat better, exercise, and avoid medications which they feel mask the problem rather than resolve it. Chiropractors do not incorporate medications in their treatment regime; rather they believe that the body should be allowed to heal itself. Using the natural approaches of manipulation and physiotherapy the injured worker can heal faster and without the use of medications that mask the pain. Of course, there are times when medical intervention is required and chiropractors should recognize those signs and promptly refer out to a specialist.

Usually the industrial injury is not the first injury that the injured worker has encountered. Most have had other injuries such as car accidents, sports injuries or general aches and pains. They may have sought chiropractic treatment in the past and had success with it. When the work related injury occurs, the injured worker wants to return to the chiropractor because they have obtained relief from it. This is not an uncommon scenario. It happens all the time. They believe that because the chiropractor helped them resolve from the injuries from a car accident that the chiropractor can help with the low back strain from lifting at work.

I have seen many cases where chiropractic treatment helped the injured worker when all other forms of treatment had failed. Chiropractic is a great option for musculoskeletal injuries that do not require surgery. Chiropractors can perform physiotherapy and manipulation, giving the injured worker the best of both worlds. The key is making sure that the injured worker finds a good and competent chiropractor. There are good and bad in every specialty and chiropractic is no exception. A great chiropractor can make all the difference. If the injured worker is not progressing, then the injured worker may be treating with the wrong chiropractor. If you feel that the injured worker is not treating with the best chiropractor, then case management may be indicated to move care in an appropriate direction.

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 contact Dr. Webb at Drwebb@adjustingworld.com.

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

Buzz from the Street:

Liabilities has a new wrinkle and you thought WC statute of limitations was a myth.

What is the date of injury for a cumulative trauma?

In a published opinion, the Second District Court of Appeal, issued an important ruling in the case, State Compensation Insurance Fund v. Rodarte, 69 Cal Comp Cases 579.

The facts are as follows: Ms. Rodarte suffered right arm symptoms first in July, 1997. She filed a claim and began treatment in October, 1997. She returned to modified work with restrictions. She lost no time from work. She never returned to full duty. On August 7, 1998, she left work and began temporary disability.

The WCAB found that under Labor Code 5412, her last date of injurious exposure was the August 7, 1998 date and assessed the Labor Code 5500.5 liability accordingly. CIGA in place for Cal Comp was dismissed and SCIF had the entire liability.

SCIF sought a Writ and the Court said “the date of injury under section 5500.5 requires compensable temporary disability or permanent disability. Medical treatment alone is not a disability, but it may be evidence of compensable permanent disability, as may a need for the splints and modified work..” They sent the case back for a determination in accordance with their opinion.

Clearly the flexibility of the cumulative trauma dates are influenced by this ruling and the shifting of liabilities has a new wrinkle. There are reports that an Appeal from this decision will be sought with the Cal Supreme Court.

WCAB requests comments on SB 899 retroactivity.

Following up with its decision in Davis v. City of Sacramento, (2004) 32 CWCR 132, the WCAB in a memo has asked for comments on the following facts: Applicant was first injured on 3/25/93 and settled by C&R on 2/8/96. He had a subsequent injury on 12/2/97. A trail Judge made an Award on 4/7/04 for the second injury without any apportionment to the first. On reconsiderations, defendants have asked that Labor Code sections 4663 and 4664 be applied. The questions from the Memo are: 1) Are the apportionment sections of SB 899 applicable to those facts? 2) If so, is an order approving a C&R a prior award of PD for purposes of the conclusive presumption in section 4664 (b)?

The Davis case was sent back to the Trial Judge by the WCAB requesting that the WCJ reevaluate the apportionment evidence in light of the SB 899 changes. The Davis order was not a final one so it is not able to be appealed and does offer a shed of information that the retroactivity of the apportionment provisions are not be overlooked.

Comments are due by 8/2/04 to the WCAB Board Secretary, PO Box 429459, San Francisco 94142.

Miscellaneous Decisions

Kelly Temporary Services v WCAB (Ringleb), 69 Cal Comp Cases 568, the Second District reversed and annulled a WCAB decision. The Court said the WCAB had no discretion not to allow credit against an employer’s workers’ compensation liability in an amount equal to that which they paid the EDD in satisfaction of its lien. The Court said that there could no double recovery for the Applicant.

Morris v WCAB, 2004 Cal Wrk Comp LEXIS 181, the Fourth District upheld the one year statute of limitations when the applicant testified that she knew or should have known that her disability was work related more than one year before she filed her Application. Defendant’s failure to give her a claim form did not prevent the statute of limitations when the WCAB found that the Applicant was aware of her workers’ compensation rights. And you thought WC statute of limitations was a myth?

Thanks for your attention. Enjoy the rest of the Summer!

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