Happy New Year

William Nathans
Senior Claims Examiner
Athens Administrators

I would like to take this opportunity to send my deepest thanks and heartfelt wishes to all of you for a healthy, prosperous and Happy New Year.

The writers and I, who contribute tirelessly to Adjusting World, do this because we feel it is important to share knowledge with the workers’ compensation community. It is our goal to educate and to create interest in current issues. It also our hope that by providing a forum to exchange ideas, that strong leadership and advocacy will be nurtured; something we sorely need to make the system work and to allow us, as a community, to fulfill our industry goal of delivering benefits to injured workers expeditiously and without fault. It is important that we are reminded of this from time to time, since we sometimes get caught up in the adversarial process, losing sight of our mandate.

There are great changes ahead in the coming year, some good, some bad; it all depends on which side of the fence you are on. We will all have to wait and see what the final outcome will be, but as a famous actress once said “Fasten your seat belts; it's going to be a bumpy night.”

Suggestions can be sent to Bill@adjustingworld.com.

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

I recently attended a local meeting sponsored by the California Chiropractic Association. Every month I get the fliers for the local meeting and usually I just throw them away. This time I didn’t. This time the meeting addressed Utilization Review. I knew that there would be people there that know I am a Case Manager and would not look kindly to seeing me there “spying” but I threw caution to the wind, put on my best disguise and went (besides, the dinners at these meetings are fabulous!)

The biggest defense to Utilization Review denials that the expert speaker discussed was the application of proper timeframes in Utilization Review determinations. He quoted the en banc decision in the Sandhagen case of October 5, 2004 where SCIF did not make Utilization Review decisions in a timely manner. In this decision the worker’s compensation judge determined that because SCIF did not comply with the deadlines for Utilization Review it is “precluded from using the Utilization Review procedure for the particular medical treatment dispute in question.” The expert advised the doctors attending to hold the insurance company/TPA to proper timeframes in their Utilization Review decisions and to use the Sandhagen case in their appeal. He argued that if the insurance carrier/TPA did not follow timeframes, then a lien should be filed and treatment should continue as the worker’s compensation judge would likely rule in their favor.

He also discussed the issue of “cure or relieve” as found in LC 4600 for use in appeals to Utilization Review denials. In future medical cases, the care provided by the chiropractor will not “cure” the condition but rather will “relieve” the condition. This rationalizes the ongoing care as relieving the injured worker’s pain/symptomatology but not curing the injured worker. He also stated that SB899 section 47 states that a future medical award can not be amended. This proves tricky as most permanent and stationary/QME/AME reports state that the injured worker will need “future chiropractic care on an as needed basis” and does not quantify the number of visits that the injured worker may need during the course of a year. For the last couple of years and especially now, I have the Primary Treating Physician quantify the future medical requirements in his permanent and stationary report so that the insurance carrier/TPA and the Primary Treating Physician are on the same page when it comes to the future medical needs of the injured worker.

During this dinner, the one topic that almost made me choke on my dessert was his quoting of the California Penal Code. In appeals he told the doctors to quote the California Penal Code section 550 (b)(1)(2)(3) and the California Insurance Code section 1871.4 (a)(1)(2)(3) which state that it is a crime to deny care that an injured worker is entitled to. Look out for letters using the Penal Code and Insurance Code. These types of letters will surely be more prevalent in the near future.

In all I came away from this meeting realizing that chiropractors are scrambling as probably most Primary Treating Physicians are in this time of flux. It was obvious that most doctors there did not know the law. Some had no idea what a MPN was. They are looking for guidance and direction from anyone that will give it. The expert at this meeting knew his material but may not have given the best advice. His advice seemed to enforce the idea that the insurance carrier/TPA is the enemy. Instead of teaching the Primary Treating Physicians to try to work with the carrier and provide appropriate treatment, his advice seemed create an even bigger gap between the Primary Treating Physician and the insurance carrier/TPA . Hopefully this will not become a trend for the future.

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.

Joan Lloyd is a management consultant, executive coach, workshop trainer and professional speaker. www.JoanLloyd.com, (800) 348-1944

Cell phones – can’t live with ‘em, can’t live without ‘em

I was interviewed recently about the use of cell phones in business settings. While I’m not an expert on business etiquette, I’ve discussed the subject with colleagues— usually when we are sitting in a restaurant and hear a cell phone ringing or a loud cell conversation three tables over. Why not share your thoughts with your own colleagues and see what they think is good cellular behavior?

Here is a sample of our interview:

What are the most common mistakes people make regarding using cell phones in the business world?

When you are with a business associates, your phone should be off. Because cell phones are so accessible, it’s easy to make the mistake of thinking it’s different than the phone on your desk. If someone where sitting in your cubicle or office and your phone rang, your visitor would be insulted if you picked up the phone and started a conversation. I often hear employees complain about this bad behavior on the part of their manager. They tell me, “It’s obvious my boss thinks the person on the phone is more important than I am.” 

I think the same message is conveyed when you make or receive cell calls when you are with another person. More >>

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

What are the common problems seen with knee injuries?

Knee pain is very common. Obviously it can result from specific work injuries as well as nonindustrial events such as motor vehicle accidents and sports injuries.

The common problems seen include sprains and strains, such as ligament injuries, degenerative processes such as arthritis, meniscus tears, patellar tendonitis, bursitis, and a variety of other problems which may only be diagnosed at the time of arthroscopy.

Meniscus tears refer to tear of the cartilage which rests between the upper bones and lower bones of the knee. Meniscus are tough cartilage. There are medial and lateral meniscus. The purpose of the meniscus is to cushion the joints and bones of the knee. Without them, or after removal, one is much more likely to develop degenerative problems in the knee.

Clinically, the meniscus can degenerate or tear, or both. The torn cartilage can cause the knee to be painful, lockup, or ache. Sometime the medial meniscus can tear at the same time as the anterior cruciate tears. If this occurs with the medial collateral ligament tear, it is call the Unhappy triad of Odonahue.

Ligament injuries: The posterior and anterior cruciate ligaments can tear or degenerate leading to anterior or posterior instability and buckling and weakness of the knee.

The other two ligaments are the lateral and medial collateral ligaments which if disrupted may lead to side to side instability. These last two ligaments can become irritated or torn and can be a source of pain.

Patellar Tendonitis: The tendons connecting the kneecap (patella) to the lower leg is the patellar tendon. Above the patella is the quadriceps tendon, attaching the kneecap to the upper leg. The purpose of these tendons is to allow the knee to extend, or straighten out, continuing the work of the quadriceps muscles. Patellar tendonitis can be caused when the tendon becomes irritated from excessive extension of the leg, or pressure against force, such as in jumping. It is seen also in runners and those frequently bending and kneeling.

With patellar tendonitis you may have tenderness over the patellar tendon, or with jumping and kneeling. Occasionally there is swelling. This is treated with therapy, anti-inflammatory, supports, and strengthening and stretching.

Interarticular knee injections: A type of steroid, such as cortisone, normally produced in your body, or synthetic steroids can be injected into the knee joint. The steroid works as a local anti-inflammatory. It is often injected with a local anesthetic. Local injection allows a fair amount to be injected without systemic side effects. This can be helpful for a variety of knee problems such as bursitis, tendonitis, meniscus injuries to calm down the inflammation, and for other reasons.

Sometimes there is a temporary increase in the amount of inflammation, but usually transiently. The most common side effects are slight retention of fluid, flushing of the face, and occasionally a slight discoloration of the skin.

Steroid injections may be repeated a few times per joint per year, but this needs to be clinically assessed due to variability of patients and physicians experience.

New Cases for a New Year.

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

Changes to California Labor Code section 5814 regarding penalties was one of the major pillars of SB 899. The operative date of June 1, 2004 caused many applicant law firms to flood the Boards and Adjusting Agencies with Petitions on all their cases in order to protect their ability to be under the Old law.

Abney v. Aera Energy & Liberty Mutual (en banc) 69 Cal Comp cases ____ (12/8/2004) has put that threat to rest. The WCAB en banc stated “that the language of section 5814 itself, the stated purpose and intent of SB 899, as well as relevant case law, support our conclusion that the remedy afforded by the current rather than the prior version of section 5814 applies in cases where the alleged unreasonable delay or refusal to pay compensation occurred prior to the June 1, 2004 operative date.” (emphasis added)

What this means is that all penalties decided after June 1, 2004 are to be calculated in accordance with the new formula.

Under the newly enacted section, a penalty is assessed only against the amount of the payment unreasonably delayed or refused (up to 25 percent or $10,000.00, whichever is less), and is reduced by any amount paid under section 4650(d) on the same unreasonably delayed or refused benefit payment.

For example, under Labor Code section 4661.5, after two years, temporary disability payments increase to the current rate. If instead of paying $602 for 20 weeks, $490 was paid, there would be a delay in payment of $2240. Under the old law the penalty would be 10% of the entire species of temporary disability which could result thousands of dollars in penalties being paid.

Through the new 5814 and the Abney case, the penalty would be 25% of the $2240 or $560 less any Labor Code section 4650(d) – self imposed 10% payments made.

The Board made other comments in the case which interpreted section 5814(c) that all Orders etc. constitute a conclusive presumption of the resolution of penalties at the time of the filing of that Order, etc. The Board stated that this section “applies only to the approval of compromise and releases, the issuance of findings and awards, stipulations and orders, and the submission of any issues at trial, on or after June 1, 2004.”

The WCAB also reaffirmed the two year statute of limitations for all penalties.

Another Panel decision has emerged at the behest of State Compensation Insurance Fund which may cause difficulties for the defense community.

Grom v. Shasta Wood Products (68 Cal Comp Cases ----) (12/8/2004) ostensibly has been reported for the principle that “cure or relieve” and “cure and relieve” are interchangeable and that they both mean that treatment should be provided which either “cures or relieves” the workers’ injury.

The difficulty is that Labor Code section 4600(b) was not argued by SCIF (last month’s article went in to greater detail on that code section) and further that SCIF failed to meet their burden to support the ACOEM guidelines with respect to evidence-based medicine.

If medical treatment expense is to be contained, the ACOEM guidelines and other evidence-based medicine must be used and supported at the Boards. SB 899 purportedly ended costly, ineffective, anecdotal medicine. The WCAB is working hard to bring it back. Maybe a District Court of Appeal will set the record straight.

All for this month … keep your seat belts on ... the road ahead is a bumpy one!

Thanks for your attention.

---- Stephen Kline, Esq.

Results of the December Poll

Are The Utilization Review Time Limits Reasonable?