I support the appointment of Andrea Hoch

William Nathans
Senior Claims Examiner
Athens Administrators

The battle lines are being drawn by the CAAA and Voters Injured at Work. They have launched a campaign to prevent Andrea Hoch’s confirmation. Their main complaint is that they don’t like the permanent disability schedule or the fact that under the current MPN regulations, an injured worker can be forced into the network.

One of our contributors has written a letter that can be forwarded to members of the legislature to support the confirmation of Ms. Hoch.

Please take the time to send it if you think that Ms. Hoch should be confirmed. If you wish to write your own letter, please do. All I ask is that you get involved.

Suggestions can be sent to Bill@adjustingworld.com.

Dear Friends and colleagues-

The new schedule is very well designed and it actually increases disability in many priory under compensated areas.

Support the confirmation of our Current Administrative Director, by emailing the members of the senate committee.

You can use the enclosed text if you so desire...

Honorable Senators -

Allegations about the new schedule are unfounded and supported by a flawed study. The new schedule only reduces the ability of its users to manipulate and inflate permanent disability indemnity.

I support the appointment of Andrea Hoch as Administrative Director.

Senate panel responsible for the decision (Sen. Don Perata, D-Oakland, chairman Senator.Perata@sen.ca.gov; Sen. Jim Battin, R-Palm Desert, vice chairman-Senator.Battin@sen.ca.gov; Sen. Roy Ashburn, R-Bakersfield-Senator.Ashburn@sen.ca.gov; Sen. Debra Bowen, D-Marina Del Rey-Senator.Bowen@sen.ca.gov; Sen. Gilbert Cedillo, D-Los Angeles-Senator.Cedillo@sen.ca.gov)

Sincerely,

Thank you!
Luis Pérez-Cordero
Impairment & Permanent Disability Rating Specialist
pdrating@pacbell.net
 
Craig A. Lange - MRT Administrator
Impairment & Disability Rating Specialist
craiglange@pacbell.net  
 
Voice: (415) 861-4040
Bay Area Fax: (415) 276-3741
Central California Fax: (916) 848-3582
Southern California Fax: (619) 374-7334
 www.PDRATINGS.COM   

William Nathans
Senior Claims Examiner
925-826-1167
FAX 925-609-5472
Bay Area Housing Authority

Chiropractors as Combatants

What D.Cs never seem to understand, is that months of "treatment" should result in resolution of the problem. It did, back in the 60s. People got well, and went back to work.

I just don't get it!  If chiropractic works, then why don't patients recover?  Why, after months of "adjustments" does the patient wind up with 30% or 40% permanent disability?  The continuing "need" for more adjustments is obviously self-serving, and ridiculous on its face. It obviously does no good at all.

I went to Chiropractic College myself in the 80s, and saw the same practice building "experts" tell young students the same old story: the Insurance Company is your enemy. Why doesn't the chiropractic profession correct this? Why are these people still infecting our young chiropractors with this propaganda?

That is the problem, in my view; Practice Building.  Until you people can move beyond that, you will be shut out of the workers’ comp system.  You cannot win this war.  Medical doctors have tried to get rid of you for many years. This may be the last gasp. You are not physicians.  You can call yourselves "doctor" all you want, but you are not doctors and never will be.  

You don't even have the training an R.N. receives. Get real!

JOHN NORMAN LAW    P.D. Rating Specialist.

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

So what exactly is work conditioning?? How about work hardening? Where does therapeutic exercise fit into the scheme? They seem like they are the same thing but really they are not. Most chiropractors don’t know the difference between them and end up billing inappropriately for services rendered.

In simple terms, work conditioning consists of a general exercise program because the injured worker is in a deconditioned state. Work conditioning improves the general overall physical condition focusing on strength and aerobic endurance. Work hardening, on the other hand, requires putting the claimant through tasks specific to his/her job. It builds strength and endurance only for specific job related body movements, such as lifting, but not focus on improving overall aerobic health.

All chiropractors are qualified to do work conditioning and work hardening. Most are not, however, equipped to provide these services. Work conditioning, for example, would require equipment for aerobic exercise. Work hardening would require equipment and/or Cybex machines to build the strength of specific muscles. For the most part chiropractors provide therapeutic exercise to their injured employees. Therapeutic exercise could be instruction on stretches and generally does not require any sophisticated equipment.

An example of what work hardening is NOT is the case of a chiropractor telling the injured worker to go into a room unsupervised and use the Bowflex machine. He was billing work hardening 3 times per week but not truly providing the service. As another example, I recently visited another Primary Treating Physician’s office and was seated in his “rehab” room to wait. The room was about 3 feet by 6 feet and attached to the wall was some tubing. There was no other equipment in the room. The injured worker had a low back injury and he was billing work conditioning at a rate of 2 times per week. Obviously these chiropractors do not have the proper equipment to perform work conditioning/hardening yet they are billing top dollar for it.

For true work conditioning/hardening the proper equipment is essential. Most chiropractors do not have the appropriate equipment in their office to perform these services. However, there are chiropractors that do. I have seen large offices with rooms full of equipment and a qualified assistant supervising the clients. Likely, your best bet is to have the Primary Treating Physician refer to a licensed physical therapist to provide these services. Physical therapists are trained to provide this type of service as this is their “bread and butter”. For chiropractors this is typically an adjunct to chiropractic treatment. If in doubt as to whether the chiropractor has the set-up to do work conditioning/hardening or not, have a Chiropractic Case Manager or Nurse Case Manager perform an on-site visit to the chiropractor’s office. These visits provide a wealth of information and can save thousands of dollars in improper billing.

About the author: Dr. Webb is the Supervisor for Chiropractic Field Services 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.

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.

Workers Compensation Decisions:
Two Very Different Worlds

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

At the end of January, I spent four days surviving the political indoctrination barrage of the California Applicants Attorneys Association. Their message was we’re going to strictly interpret every aspect of SB 899 that limits any of the benefits to workers and anything that can give us more will be wedged and leveraged. If recent WCAB decisions are indicative of any trend, CAAA has a key cheerleader with WCAB Commission Chair Merle C. Rabine leading the charge with his almost single-handed approach to limit SB 899 and its effects.

But legal protocol mandates that we look first at the California Supreme Court’s recent unanimous decision, Honeywell vs. WCAB (Wagner) wherethe Justices announced that the 90-day investigation period of Labor Code §5402 is NOT triggered when an employer knows or should have known of an industrial claim and fails to provide a claim form. Instead, an injured worker must file a claim form before the 90-day investigation period begins. Only an employer’s egregious conduct of misleading an employee or intentionally refusing to provide a claim form will trigger the 90-day period absent the filing of a claim form.

Labor Code §5402(b) provides that an injury is presumed compensable if an employer fails to deny liability of a claim within 90 days after the date the claim form is filed.

No longer are employers forced to assume liability in cases where it is asserted there was constructive knowledge of a claim and a failure to provide a claim form. Employers are no longer required to complete 90-day investigations and issue denials before a claim form is filed. Employers are still required to (1) provide claim forms within one working day of receiving knowledge of an injury which results in lost time beyond the work-shift or in medical treatment beyond first aid and (2) to provide all treatment from the filing of the claim form until the date the claim is rejected up to a maximum of $10,000.

Through the Honeywell decision, the Supreme Court mandates that the WCAB follow the Legislature’s clear statutory commands instead of creating penalties which undermine legislative intent. Labor Code §5401 and §5402 were originally enacted as part of the Workers’ Compensation Reform Act of 1989 which was intended to reduce costs to employers, encourage prompt investigations of claims and increase benefits for injured workers. Prior to the Supreme Court’s ruling in the Honeywell case, the WCAB had penalized employers for failing to provide claim forms instead of following the clear language of Labor Code §5401 and §5402.

In a hint of their attitude towards SB 899, the Justices discussed the legislative history behind the 1989 Reform Act and used it to reel in the WCAB’s abusive discretion. Similar issues come into play with the WCAB’s recent interpretations of SB 899.

Is anyone at the WCAB listening?

Maybe not. Compare the Supreme Court’s clear decision with a case decided again by the WCAB en banc, Sandhagen vs. Cox & Cox Construction, Inc. #2 written by Chairman Rabine.

He went out of his way to state the opinions of the Board towards Utilization Review, “A lthough we are dismissing applicant’s petition for reconsideration and, therefore, are not formally reaching its merits, we make the following observations regarding his contentions (1) that the utilization review process of section 4610 is mandatory and (2) that, if a defendant does not timely engage in utilization review, it is precluded from using a QME or an AME under section 4062(a).”

He stated that Utilization Review is not mandatory in every decision Mr. Rabine re-iterates his draconian, and not legislatively supported punishment for the failure to follow the strict, almost impossible, time limitations of Labor Code section 4610 with his by disallowance of an untimely UR report for any purpose.

In lieu of Utilization Review, Mr. Rabine disregards the legislative intent (there were only 6 votes out of 120 against the bill) by going back to have the AME/QME dance party resolve medical treatment issues. Chairman Rabine is not dancing to the new tunes of SB 899 and the Supreme Court.

We have a lot of work ahead of us. For those of us waging the battle in the trenches day by day, we are all too knowledgeable about the realities of the Judges rarely giving an inch to honor SB 899. However, don’t give up … this reform can be upheld at the Court level. Just got word that the Second District has held that apportionment is retroactive with the EDD v WCAB (Kral). More on that next month.

I want to express my gratitude to my new colleague here at the Armstrong Law Firm, Carol Finuliar who graciously contributed to this month’s article.

Thank you for your attention and the work that you do.

---- Stephen Kline, Esq.

Luis Perez-Cordero, MA, AAPMR & Craig Andrew Lange
Impairment & Disability Rating Specialist

Attending CAAA’s Conventions is always an exciting proposition. You never know what to expect! When it comes to the medical reporting and description of Permanent Disability, I must agree with CAAA’s motto of "comply with the literal letter of the law." The proper evaluation, preparation and compliance with the literal letter of the law as defined by case law, the Labor Code and California Codes of Regulations, is something every medical evaluator (PTP, QME, IME or AME) should strive-for. AMA Guides states it best: Clinical findings must be fully described so any knowledgeable observer can check the findings with the Guides criteria. Let us take all P&S medical reports to this higher ground, as recommended by applicant attorneys.

Measuring & Describing Disability After 01-01-2005

The Schedule was not the only regulation dealing with Permanent Disability that went into effect on 01-01-2005. To abide to LC § 4660 (b)(1), alongside with the new Schedule’s implementation, the old evaluation regulations for describing measurable factors of disability (9725-Packard Thurber), subjective factors (9727) and psychiatric disability work functions (9726) were ended as of 12-31-2004. Any physician that prepares the new PDR-4 and/or a comprehensive or medical-legal Permanent & Stationary (P&S) Report must comply with LC § 4660 (b)(1) and the California Codes of Regulation Guidelines for the measuring and description of both impairment and disability found at http://www.dir.ca.gov/dwc/dwcpropregs/8-CCR-9725-et-seq(12-04).PDF.

If a ratable P&S report was not prepared as of 12-31-2004, the physician has to use the new AMA evaluation protocols to both measure and describe impairment, since the old regulations are no longer applicable or are a part of the Labor Code and California Code of Regulations. Regardless of what correspondence you received to ‘lock' the use of any prior rating, there are strong grounds for objecting to a medical report PDR-3 or PDR-4 describing Permanent Disability with the use of abolished regulations.

The 5th Edition of the AMA Guides defines the standard methods the evaluator must follow to measure the objective manifestations of impairment when considering both anatomic and functional loss. The AMA Guides also states that other approaches, when published in scientific- peer-reviewed literature, will be evaluated and considered for future editions of the AMA Guides. The evaluating physician follows protocols & Evaluating (Rating) Criteria from AMA Chapters 1 & 2 and the Impairment Chapter(s) for the body parts being evaluated.

When applicable and when listing medical findings, Physician uses AMA reporting forms or incorporates their information within the comprehensive P&S report. The AMA Guides are very clear in stating that full and complete reporting is required. Thorough documentation of medical findings at the onset provides claim administrators with the information needed to quickly provide entitled benefits. As stated in the introduction of Chapter 2: Two physicians following the rating methods of the Guides 5th Edition to evaluate the same patient shoulder report similar results and reach similar conclusions.

LC § 3209 defines the licensed health professionals [“physicians”] allowed to determine disability under the Workers Compensation System. These professionals are permitted to treat or determine residual disability within the scope of their licensed practice as defined by California Law. “Physician" includes physicians and surgeons holding an MD or DO degree, psychologists, acupuncturists, optometrists, dentists, podiatrists and chiropractic practitioners licensed by The State of California and within the scope of their practice as defined by California Law. A P&S report prepared by a physician’s assistant is not valid under California Law.

The evaluating physician must address the occupational factors that played a significant role in producing the disability, which the physician has described. Apportionment involves a segregation of the disability attributable to the industrial injury from that, which is due to other factors. The evaluating physician must give a reasoned, well-supported opinion authenticating the level of disability that is due to both vocational and avocational factors.

Physician must consider avocational factors, findings and symptomatology independent of the permanent disability due to vocational causation. Evaluator must provide a well-reasoned opinion based on the review of the medical records/history that considers pre-existing objective pathology, symptomatology, work limitations secondary to pre-existing disability, including time off from work or need for treatment. Avocational considerations include a quantified account of relevant personal habits that may be relevant in either contributing to the initial symptoms or continue hindering their resolution. SB 899 - L.C.S. § 4663 & L.C.S. § 4664:

WORKERS’ COMPENSATION EXAMINERS
*Temp or permanent positions in San Francisco, Oakland, Concord, Walnut Creek, San Jose & Sacramento. Must have at least 3 years of current Workers' Comp experience.
* Medical/Dental/Vision/PTO Benefits available for temporary assignments

RETURN TO WORK COORDINATOR
A return to work coordinator with experience in administering FMLA and ADA guidelines for a position in the South Bay

HR DISABILITY MANAGEMENT MANAGER
HR Disability Management Manager with a strong managerial and supervisory background in HR & Work Comp for a position in the South Bay

NURSE CASE MANAGERS
Experienced Nurse Case Managers for all of Northern California

Send resumes to referral@siennastaffing.com

Results of the February Poll

Will the Medical Provider Networks Survive a Legal Challenge?