Ball of Confusion

William Nathans
Senior Claims Examiner
Athens Administrators

What is an adjuster to do? We are now six months into the law and what has changed; depends on whom you ask.

If you ask the applicant side, the poor injured worker is the big loser, because treatment is being denied, and benefits are not being paid. If you ask the employer, they are losers because they have to provide medical benefits on all claims, unless the claim is denied. If you ask the doctors, they are losing because of Utilization Review. If you ask the adjuster they are losing because of all the additional work they have to do. So who exactly is winning?

But the best is yet to come! We have Workers’ Compensation Judges (WCJ) who are creating final orders when none have existed before. So, when is an order final? Apparently, when the WCJ says it is, whether it is appealable or not.

Take cover, because this is just the opening salvo in the war on SB 899. We can expect challenges to the Medical Provider Networks (MPN), the new rating schedule, apportionment and evidence based medicine guidelines.

January 2005 will ratify our admission from the territory of the unknown to a state of confusion. I guess the next thing to come is a new state flag.

Any suggestions?

Suggestions can be sent to Bill@adjustingworld.com.

Inject or not to Inject?

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

Q: Please explain injections (non anesthesia)  and  review the different types of injections?

A: Injections can be performed for pain control, treatment, diagnosis, or cosmesis.    

Q: What is injected? 

A:  Generally a combination of a type of injectable steroid, a local anesthetic such as xylocaine or longer acting Marcaine.  In certain types of injections under x-ray or fluoroscopy contrast dye such as isovue or omnipaque is injected.  FLUOROSCOPY is used in order to document the proper location of the needle tip, especially  in spinal injections, although some people feel the need to inject extremity joints under fluoroscopy. Fluoroscopy for spinal injections is becoming the standard of care.   Although there is no real rule for the maximum number of injections, many tend not to inject more than 3 times in the same joint per year.

Q: What are the side effects?

A: Patients generally suffer no side effects, although serious side effects such as death, wet taps, serious infections, allergic reactions, steroid reactions such as flushing of the face and water retention,  or temporarily increased pain can occur.  Occasionally medication can be injected in a vein, which is not healthy.  A needle can be injected into something such as lung etc. Not all injections help, and some need to be repeated.  

Q: What are trigger injections, soft tissue, and joint injections?   

A: A trigger injection is an injection of steroids or xylocaine, or sometimes is a dry injection into trigger areas of the back and neck, in order to minimize local inflammation or irritation.  Large muscles such as trapezious and paraspinal muscles may respond well to these types of injections.

Other examples of soft tissue injections include tennis elbow, dequarvains, and carpal tunnel injections. One generally does not inject tendons, because of potential weakening and failure of the joint, although injecting around the biceps tendon in the shoulder and the Dequervains tendons is commonly done.   Pretty much all joints of the body which become inflamed may respond to local injections, especially such as the knees, shoulders. Indications may include osteoarthritis, rheumatoid arthritis, inflammation, trauma etc.  

Q: What are the types of Epidural Injections? 

A:  An injection between the outer layer of the spine (Dura) and the deep musculature of the back is an epidural block.  It is helpful sometimes for radiculopathy and other types of pain involving the spine and extremities. Interlaminar:  An injection between the vertebra in the more or less the center of the spine.

Transforaminal (Selective nerve root):  Injection to the side of the vertebra where the nerve root comes out.  May be more specific, but may have more side effects.  

Caudal:  Injection through the caudal foramen, close to the tip of the spine.

Q: What about discograms?

A: Injection of contrast dye into the disc. Generally used preoperatively in order to determine whether or not a specific disc is injured or unstable to see what levels may need to be fused.  This can be very subjective, overinterpretted,  and some studies suggest  a poor correlation with clinical findings. No indication if a fusion is not seriously considered.  A serious complication is discitis.   Due to space constraints, we did not cover facet blocks, median branch blocks, sympathetic blocks, sclerotherapy, pain pumps, Botulinum (Botox),nerve blockade, or vertebroplasty (injecting into the bones).

The Big Four

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

The WCAB has been busy and they announced two en Banc decisions and one Significant Panel Decision. However, they were upstaged by the Second Appellate District with the long awaited decision in the Remedy Temps (Micelli) case. In defences to the Judges, we’ll start there …..

Last year, the WCAB in an en Banc decision rendered an opinion regarding temporary agencies, bankrupt insurance carriers and the company that hired the temporary agency. The WCAB found that if a temporary agency’s insurance carrier becomes insolvent and the Company who contracted with the Temporary agency had a solvent workers compensation carrier, then via an interpretation of the Insurance Code, that solvent carrier, would be “other insurance” relieving CIGA of any responsibility.

The controversial decision was placed on hold by the granting of a Writ of Review by the Appellate Court.

General Casualty Insurance v WCAB & CIGA (Remedy Temps), 2004 Cal App Lexis 1754 (2 nd District) issued a lengthy analysis and sixty footnotes of the Insurance Code. In the end, the decision remains unchanged.

The Court said, “Based on statutory language, legislative history and judicial decisions, we conclude that employer joint and several liability to employees for workers' compensation benefits is not extinguished by Ins. Code section 11663 or section 3602, subdivision (d). In addition, Ins. Code section 11663 is expressly limited to insurers, which does not include CIGA. In regards to section 3602(d), the statute allows general and special employers to avoid duplicate insurance coverage and premium by agreeing to insure for workers' compensation with a single insurer.”

The way for a Company to avoid this situation with its Temporary Agency is for the Company to obtain “workers' compensation coverage from two separate insurers.” Provisions in the coverage would exclude special temporary employees.

But wait just a minute … this may not be over. The principal in this matter Remedy Temps has announced that they will seek a review by the California Supreme Court. Until that Writ is granted, the relationship between temporary agencies and companies will be under closer scrutiny.

The WCAB, en Banc, gave some direction as to the retroactivity of SB 899 in the case, Scheftner v Rio Linda School District. The WCAB said , “ we hold that submission orders and orders closing discovery, that issued prior to the enactment of SB 899 on April 19, 2004, are "existing" orders that cannot be reopened due to the prohibition set forth in Section 47. We also hold that absent existing orders as so defined the amendments, additions, or repeals of SB 899 apply prospectively on or after April 19, 2004, to all cases, regardless of the date of injury, unless otherwise specified in SB 899”.

Thus, if there was an Order before April 19, 2004 closing discovery then that Order may not be reviewed because of the changes made in SB 899. A question is raised though, are the pre-SB 899 medical reports which do not discuss apportionment pursuant to the new code, are they insubstantial and not admissible?

The more important part of this decision may be in its affirmation that SB 899 applies to all cases, regardless of the date of the injury. The WCAB takes as well as gives.

Willette v Au Electric Corporation (SCIF) is another en Banc decision which on the surface has some helpful language, but with close analysis raises some very challenging questions for the future of the SB 899 “reforms”.

The WCAB allowed a Utilization Report to be admitted into evidence without signature and without verification per Labor Code section 139.3. However, in an unrepresented case, they indicated that the Judge can consider the following reports without preference: The primary treater’s recommendations; the UR non-certification; and the Panel QME’s report. Further neither the PTP nor UR may comment on the Panel QME’s decision.

The WCAB did not respond to any ACOEM issues raised allowing the Panel QME to render an opinion and a the WCJ to decide the case. Another San Jose decision where the employee was represented and the WCJ did not allow the unsigned UR report to be admitted is working its way through the WCAB.

Lastly, the WCAB issued a Significant Panel Decision where a new kind of statute was created … “Ghost Statutes”. Godinez v Buffets, Inc. commented that the Vocational Rehabilitation statutes that were repealed by the 2003 legislation, but not reinstated with SB 899 “they still have a shadowy existence for injuries prior to January 1, 2004. Like ghosts “doomed for a certain term to walk the night” ( Hamlet I, v), these statutes have no material existence but linger until their work is done. Because there is no other operative law, we hold that former section 4645 is a similar “ghost statute” that continues to govern the timeliness of appeals from decisions of the Rehabilitation Unit.”

A similar situation exists for the pre January 1, 2005 QME Process for represented applicants, where the statute was repealed and nothing in the interim was done to replace it. One could argue that the QME Ghosts are swirling around do their thing.

I’ll refrain from making further analogies …. Let your own ghoulish imaginations go wild!

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

Injuries to the low back account for 30% if all industrial injuries. These injuries range from lifting injuries to cumulative trauma type injuries. Many of these injured workers treat with chiropractors. Most Claims Examiners do not have the medical background to know what is appropriate for the injured worker treating with a chiropractor. The ACOEM Guidelines do support manipulation for the treatment of low back pain. ACOEM states that “manipulation appears safe and effective in the first few weeks of back pain without radiculopathy. A trial of manipulation for patients with radiculopathy may also be an option. There is consensus on its utility among practitioners who perform it, when radiculopathy is not progressive, and large series and cohort studies suggest value for some forms of manipulation” (ACOEM pg 298-299). We are going to discuss the “ideal” way a chiropractor would typically approach an injured worker with low back pain.

The most common injury to the low back is a sprain/strain type injury. The injury is characterized by localized low back pain with no pain into the buttocks or legs. Pain can be mild to severe in nature. In the initial stages of treatment of an acute low back sprain/strain, a chiropractor would typically use therapy modalities such as electrical stimulation and ice. Manipulation would also be incorporated immediately. Treatment frequency would generally be 2-3 times per week for 2-4 weeks. As the injury heals, the chiropractor would then transition to modalities such as ultrasound and myofascial release. Exercise is key to resolving these types of injuries. Stretches should be incorporated almost immediately into the treatment plan. As the injury improves, then more active types of exercise would be appropriate. Reports should list lumbar sprain/strain as the diagnosis but some chiropractors tend to use lumbar segmental dysfunction and lumbar myofascitis to describe these injuries.

Injuries to lumbar discs are less common and definitely more challenging in treatment. These injuries present with or without low back pain, but will have leg pain. Pain can me mild to severe and usually dependent on position and activity. Initial treatment would include ice and electrical stimulation, just as for a sprain/strain. Most chiropractors will try manipulation if the injured worker can tolerate it. Others may incorporate traction to the lumbar spine to help reduce the size of the bulge. Treatment will range from 2-3 times per week for 4 weeks. Stretches should be initiated as tolerated and a strength program begun as soon as the worker can participate. When the injury does not improve with 4-6 weeks of care, then a MRI should be performed to rule in a lumbar disc protrusion. ACOEM does not support the use of MRI before the first 4-6 weeks after the injury. An orthopedic consult should be initiated when the chiropractic care fails to resolve the injured worker’s symptoms.

Treatment of lumbar disc protrusions by a chiropractor can alleviate some of the discomfort but usually will not resolve the condition. For this reason it is vital that the injured worker see an orthopedist to discuss other options such as epidural steroid injections or possibly surgery. The injured worker may decline these more invasive forms of treatment, but the injured worker needs to know all avenues of treatment that are available to make an informed decision.

When treatment by a chiropractor does not generally fall within the above parameters, then case management should be initiated to control treatment. Triggers for intervention include continued treatment at 3 times per week after the first 6 weeks, failure to refer for an orthopedic consult, failure to refer for appropriate imaging studies, and failure to attempt return to work on a modified basis.

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.

Bruce E. Pitcaithley
Law Offices of Bruce E. Pitcaithley
bpitcaith@aol.com

On 9/30/04, Merck & Co. announced its voluntary withdrawal from the market of Vioxx (chemical name rofecoxib), a non-steroidal anti-inflammatory drug (NSAID).  This was a popular pain relieving drug that was used world-wide by millions of people, and its use was common in the treatment of various industrial orthopedic injury cases. Merck announced, and the FDA has subsequently acknowledged, that use of the drug, based on Merck's own recent study,  was linked to increased risk of cardiovascular events, including heart attacks and strokes.

It is believed that this will produce a massive onslaught of suits by the plaintiff's bar, and it is reasonable to believe that there will be a similar filing of "compensable consequence" claims in the industrial arena  by those applicants who used Vioxx and who have had cardiovascular problems. Historically, at least since 1975, the workers' compensation insurer/self-insured employer ("employer" hereafter) has been unable to exercise its subrogation rights in cases of medical malpractice by a health care provider. In the case of Vioxx, however, the employer will be able to seek recovery of the additional benefits it has been caused to pay as the claim will be against the drug manufacturer in a products liability cause of action.

Quick Historical Overview--Subrogation in Medical Malpractice:
During the height of the first "medical malpractice insurance crisis" in 1975 (there is again such a "crisis" that has made its way into the national arena via recent Presidential debates), the California legislature passed the Medical Injury Compensation Reform Act (MICRA). This law made landmark changes that restricted the ability of plaintiffs to recover against medical treatment providers. The one change that was of immediate relevance to our interests was one that allowed the defendant to introduce evidence of amounts paid to the plaintiff in workers' compensation benefits (collateral source rule), which in turn precluded the employer from recovering the benefits it had paid.

This law was tested in the courts, found constitutional, and effective to bar any reimbursement claims by the employer. Barme v. Wood (1984) 31 C3d 174; Miller v. Sciarone (1985) 172 CA3d 306. The court specifically recognized that this resulted in an economic injustice to the employer, but noted that the objective of MICRA was a cost-shifting of medical malpractice from the malpractice insurers to other insurers (in this instance, workers' compensation insurers). This is akin to the rationale we see in workers' compensation cases whereby CIGA is relieved of liability in certain situations, with the cost shifted to a seemingly less liable, but solvent carrier.

MICRA has been similarly interpreted by the court to bar a claim of credit by the employer following the plaintiff-applicant's malpractice recovery. Graham v. WCAB (1989) 54 CCC 160. Note, however, that it is important that there be evidence that the employee's recovery was reduced or offset by the workers' compensation benefits received.

Vioxx Claims:
Plaintiff's attorneys are no doubt salivating at the prospect of Vioxx being the new wave of a large volume of cases. The Internet is rapidly filling with attorney sites soliciting prospective clients. Rest assured, claims will likely extend to allegations of respiratory, liver and kidney dysfunction as well.

The primary cause of action against Merck & Co. will be that of strict products liability. Simply stated, this cause of action will require the plaintiff to show the product was defective, in that the drug caused injury  through its recommended and intended use. In cases of strict liability, there is no burden on the plaintiff to show negligence by the manufacturer. It comes down to the plaintiff being able to prove causation between usage of the drug and the medical injury/condition asserted. If the plaintiff can show that the manufacturer continued to market the drug, even after it was aware of possible increased risk of adverse health consequences, there is then a possible basis for punitive damages by plaintiff (not available to the employer). The threat of punitive damage exposure is what makes manufacturers in any industry sit up and take action to announce a prompt recall, and may well have been a factor in Merck's decision.

MICRA will not be a bar to efforts by employers who seek subrogation recoveries in these cases by direct cause of action, intervention or lien in the civil arena and/or by credit in the workers' compensation forum.

It is certainly far from decided whether Vioxx will ultimately be proven to be, following more research and studies, causative for cardiovascular problems, including heart attacks and strokes. Merck began marketing Vioxx in 1999 after it was approved by the FDA. At the time, it was believed this drug had a lower risk of causing/contributing to GI ulcers and bleeding than other NSAID drugs (such as ibuprofen and naproxen). According to the FDA, Merck advised them, just before withdrawing the drug, that Merck's own study, which was halted, demonstrated a "very small risk" of producing a heart attack or stroke. Some have claimed the study data suggests that chronic use of the drug produced twice the risk of a heart attack compared to patients who received a placebo.

As with any industrial claim with subrogation issues, there will be the problem of the two different burdens of proof in each forum. What may pass muster in proving causation in the workers' compensation forum (with a statutory liberal construction requirement arguably unchanged by SB 899) can be vastly different, and far more difficult, in the civil forum in a bench or jury trial. As for there being any legislative changes that softens MICRA in terms of allowing employers a right of subrogation in medical malpractice cases, do not plan on seeing that anytime soon.

Law Offices of Bruce E. Pitcaithley
200 Brown Road, Suite 106
Fremont, CA 94539
Tel. (510) 360-007
Fax (510) 360-0007
bpitcaith@aol.com

News Flash: SBICA (South Bay Industrial Claims Association) is searching for Adjusters to serve on the Program Committee.

Here is your chance to have a voice in bringing the best and hottest topics each month to the work comp community.

For more information contact: Rich Ragan, SBICA President, (888) 526-6739 x149

rich.ragan@compexlegal.com

Results of the October Poll

Are the New Causation Apportionment Mandates' Unfair to Older Injured Workers?

Tuesday
November 2

10:30 am – 1:00 pm
Registration @ 10:15

We will provide a complimentary on-site lunch from 11:30 am – 12 pm

Alliance Occupational Medicine14 th Educational Seminar

Contact Rena Flovin
408 790-2906

2737 Walsh Ave
Santa Clara, CA 95051

Speaker:
William Armstrong Esq.

Topic:
The Impact of Recent Legislative Changes to the Workers’ Comp System