Where Is The Money Going To Come From?

William Nathans
Senior Claims Examiner
Athens Administrators

It has now been four months since the legislature “reformed” workers compensation. As someone who handles the day to day issues in adjusting claims, I can tell you that the life of an adjuster has gotten more difficult. Our hands are tied with regards to getting medical opinions on compensability. Doctors and lawyers don’t know how the rules on apportionment are going to work. We have no idea how permanent disability is going to determined or what it is going to be worth. Timeframes have contracted to a point that it is going to be almost impossible to comply with. The days of adjusters handling 150 to 200 files are over.

The carriers and TPA’s are going to have to adjust the caseloads. This means that the cost of doing business is going to go up. Someone is going to have to pay for increased staffing. We all know that this cost is going to get passed on to someone. The question is who? The law was supposed to provide reduced rates to employers. Are we naïve enough to think that the employers are going to cut into their profits (if any) to hire more people? I think not! So the basic question remains where is the money going to come from? Gee anybody got any ideas?

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

Jerome H. Davis, M.D
Muir Orthopaedic Specialists
www.muir-orthopedic.com
drdavis@adjustingworld.com

Another part of the overall problem is exorbitant facility fees. It would seem to most of us that this problem could easily be handled, particularly by the claims individuals.

There is obviously a profile of facility costs for commonly done procedures such as the knee arthroscopy, shoulder arthroscopy, carpal tunnel procedure, etc.

The procedure has to be authorized by the claims person, so it would seem simple to identify the outliers, those facilities that are known to charge exorbitant fees relative to the average. In such circumstances, the claims person can simply direct the patient away from the guilty facilities.

As a group, I would expect most physician owned facilities to be more efficient, to employ more capable personnel, and to employ better anesthesiologists who are well versed in nerve blocks and outpatient treatment than a hospital facility and a similar non-physician owned facility.

In terms of cost, physician owned facilities are not exempt from greed. However, most of the facility managers are astute enough to keep their costs competitive with the other outpatient facilities.

The conflict of interest issue is specious. Physician ownership usually insures the most efficient operation, the highest quality medical and non-medical help, the highest quality anesthesia and the most patient friendly environment. I can assure you that the concern of most surgeons is that their patients be operated on in an environment where there is high motivation, high efficiency, high skill and teamwork.

Most outpatient facilities, whether physician owned or not, are still able to charge much lower fees than hospital-based facilities. In fact, much of the bad publicity incurred by outpatient facilities, in my view, has been generated by hospital lobbyists, for the very reasons that the hospital based facilities are having difficulty competing in terms of quality and price.

In conclusion, there is no question that individual providers, not necessarily physicians in all cases, are part of the problem, but I believe the major structural costs in the system lie elsewhere.

Dr. Davis currently practices general orthopedic surgery with a special interest in sports medicine at Muir Orthopaedic Specialists. He also serves on the demanding trauma service at John Muir Hospital, and is a Qualified Medical Examiner for California.

California Workers Compensation: From Packard Thurber to The AMA Guides

Transference of Evaluation Methodology

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

California has allowed for ratings for both specific and regional anatomic measurable impairment (objective) factors ratings. But the determination of these impairment ratings has always been incomplete.

SB 899, delegates’ new and important duties to the evaluating AME/IME/QME.

Evaluators have historically provided Upper/Lower Extremity Measurements, Lumbar Ranges of Motion, Imaging & Test results, diagnoses, complaints, pain factors, subjective factors, etc. Some factors were ratable (amputation/loss of motion); others were not (knee joint replacement/muscle weakness in the upper extremities).

Via the 5th Edition of The AMA Guides it returns to our system the proviso that, in addition to the reporting of the impairment findings, the evaluating physician will now determine the impairment percentage for both the anatomic and clinical objective factors - a function that has been performed by non-medical personnel.

Evaluators will now follow more exacting procedures and specific criteria in both the manner in which they obtain this information and present it in their comprehensive medical reports, which will now be referred to as - Maximum Medical Improvement Report – MMI Report.Like for any other factors of functional loss, the evaluating physician must explain the rationale and logic of the impairment rating and reference the tables and figures used in its determination.

Measurable anatomic, clinical findings, imaging studies, tests results, individual complaints, pain and other subjective factors, information that the medical evaluator has been providing in their comprehensive P&S Report, is now to be incorporated into one overall percentage of permanent impairment. Factors previously overlooked will now be incorporated into the ratable impairment factors of all musculoskeletal injuries.

In the 1960s evaluating physicians incorporated into the P&S/MMI Report the impairment methodology presented by Packard Thurber’s Evaluation of Industrial Disability. (AD Rule 9725 & 9727 » 8 CCR 46,9725 & 9727). But with these changes also began the disconnection of individual pain factors and other complaints from objective and clinical impairment factors. This severance of subjective complaints from measurable factors of impairment created a situation in which the boundaries between non-ratable individual complaints and ratable subjective factors of disability disappeared. The AMA Guides reconnects them again.

1.1 – Training Considerations

The transition from a system in which physicians only presented impairment information without having to worry how that information was used in the determination of permanent disability will require time and training .

Attend seminars and conventions presented by non-medical personnel. Do not discard the inclination of the presenting ‘expert’ panelists to help avoid fragmented or askewed interpretations of how to use The Guides.

Strongly recommended are the seminars by Dr. Christopher R. Brigham, MD, or other seminars in which medical personnel are the trainers and are either recognized by ACOEM or AMA. In both the intensive one-day seminar on 7-16-2004 in San Diego, California 1 and the ACOEM two-day seminar in Boston, Massachusetts, Dr. Brigham presented the strongest foundation for the understanding and use of the AMA Guides from the correct perspective – that of the medical profession.

After attending both, I strongly recommend that as an introduction you first attend a one-day intensive-overview seminar of the AMA Guides, and/or then attend the two-day seminar case study (hands-on) approach to Evaluating Impairment

At first the amount of information in a 1-day seminar appears overwhelming. The hands-on approach of the two day seminar helps participants understand how much of what they already do is part of the AMA Guides impairment evaluation.

The medical evaluator will now translate factors of disability, which have been rated independently from each other or never considered in the rating process into a cohesive unit - the impairment percentage.

Dr. Mohammed I. Ranavaya, in a seminar by the American Board of Independent Medical Examiners (ABIME), also affirms what continues to be the base of any P&S/MMI comprehensive report – the need of the physician to understand the regulatory demands of their respective systems.

8 CCR WCAB § 10606 outlines what should be included in a medical evaluation, the Labor Code, The WCAB and decisions by the California Courts [of what is considered a reliable medical legal expert opinion ‘substantial medical evidence’] are still the heart of any comprehensive medical-legal evaluation. They provide guidance on what and how the information must be presented within the body of the medical report.(Refer also to The Medical Opinion as Evidence - A Judge's Perspective

David Kizer, Esq., in his recent article The Medical-Legal Evaluation Process under California Workers Compensation Law (After SB 899) - Qualified Medical Examiner Article & Examination 17 - Elliott-Lopez Publications said it best in his closing remarks:

It is apparent that the AME/QME [IME] currently exists in an atmosphere in which additional sweeping changes are about to be made. The IMC Physicians Guide and the evaluation guidelines of the California Code of Regulations [now the DWC Medical Unit Guides] are still viable resources in the preparation of a California P&S/MMI Report.

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

Buzz from the Street:

Chiropractors and Bad Case Law

Two cases from the Fifth District Court of Appeal, involving the same chiropractic office, the same applicant’s counsel and the same defense counsel may forecast Appellate Court handling of SB899 and its multiple litigation points.

Wawona Packing Companyv. WCAB (Valencia) involved an illiterate farm worker who signed a HCO enrollment form which was printed in English. HCOs are similar to the upcoming Medical Provider Networks which appear on the scene on or after January 1, 2005. Enrollment in an HCO allows employer designated medical treatment for at least 90 days and in some cases as much as 180 days.

Mr. Valencia was injured on the job site and was taken to the HCO program provider. Seven days later, without notifying the employer, doctor, or the insurance carrier, the injured worker started treating with the Accident Helpline Medical Group, chiropractors. The carrier refused to pay for treatment and terminated temporary disability.

At an expedited hearing, the WCJ found that “the employer did not take sufficient steps to properly enroll the applicant in the HCO Group.” The WCAB affirmed the WCJ’s opinion.

The 5 th District agreed. Interestingly, The Court of Appeal quoted BOTH Labor Code 3202 (liberal construction) and 3202.5 (added by SB899 – equal protection before the law on burden of proof) in its introductory paragraphs. They went on to say that the evidence before the Board was clear that the worker did not understand what he was signing. The employer failed to produce any evidence as to demonstrate that the injured worker had been given a choice as to sign or not sign.

In the companion case, H&H Farms v. WCAB (Velasquez), Mr. Velasquez was injured on the job and went to HCO program provider and treated with them for about 16 days. He was released for modified duty which Mr. Velasquez found to be humiliating.

So he began treating with the Accident Helpline Medical Group. The WCJ rejected the enrollment form issue, but he found that the Injured Worker did not formally change his physician until Accident Helpline filed its lien. The Insurance Carrier was ordered to provide temporary disability and to pay for medical treatment from the date of lien. Both sides petitioned. The WCAB agreed with the WCJ on both Petitions.

The 5 th District cut and paste three of its initial paragraphs from the Valencia decision to this decision and upheld the WCJ’s decisions. They indicated that although the Injured Worker had not followed his statutory obligations to change primary treating physician, “that it is sufficient that defendant has no liability for benefits during the control period and during the period of intentional lack of cooperation.” Thus, after that control period in this case 90 days, because the injured worker testified that he was not receiving any relief from the HCO’s doctor’s care, the post control period treatment and disability would stand.

Will this case be a wedge for destroying the employer’s control of medical services with the SB899 Medical Provider Networks (MPN)? Possibly, but with the MPNs, there are several levels of appeals within the network that must be followed first before one can go outside the MPN. Also if one gets outside the MPN, the treatment can still be limited via ACOEM. However, as other commentators have noted, the legislature can do all the reform it wants, the Judges entrenched in the system may not change as easily.

Finally this month, I can’t help but to report a case which I put in the category, “Excuse me ... what was that again?”

Tracy Johnson, a psychologist with the CA Dept of Corrections for four years claimed a Cumulative Trauma injury contending that she was overwhelmed with the stress of her job. She sought medical treatment and was diagnosed with bipolar disorders, mixed with psychotic features. The claim was denied. Four days after the denial of the claim, Ms. Johnson drowned her two-year old daughter. She was arrested, confessed and was incarcerated. Shortly thereafter, Ms. Johnson committed suicide in jail.

A death claim from her surviving husband and daughter was filed. The WCJ found that they were entitled death benefits. The WCJ found that there was no evidence of any other stresses in the decedent’s life and that the job stress was the predominant cause. The suicide was a result of the reduction in her medications, thus the voices in her head had come back. The Judge concluded that the suicide was an “irresistible impulse”. The First District denied the defendant’s Writ of Review. Ca Dept of Correction v WCAB (Johnson) 2004 Cal Wrk Comp Lexis 230.

Tragic cases make tragic law.

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