Medical AOE/COE exams through a panel QME
William Nathans
Editor
Here we are almost 18 months into the new era of workers compensation. Some of the changes are working well, others aren’t. The biggest issue that is causing adjuster’s headaches (at least me) is getting a medical AOE/COE exam through a panel QME.
I recently received a panel that actually contained three AME quality doctors. (My decision date is October) The doctors are booking in December, February and April.
I requested a second panel. Again, (not really to my surprise) two of the doctors dates were the same as the earlier panel. But, I was able to get an appointment with the third doctor two weeks after my decision date.
I am going to deny the claim pending receipt of the report. Since the protocol for obtaining a timely medical AOE/COE exam through a panel QME is difficult, it is now impossible to make the decision in the 90 days as mandated by the Labor Code if the decision on compensability rests on a medical opinion.
Finally, when I do receive the medical report, what I have seen in similar cases in the past, is an increase of compensable claims with earlier permanent and stationary dates.
I would like to know what other adjusters are experiencing with their delayed claims. Is there another way to handle this issue or do we continue to do the best we can with the system we have?
Suggestions can be sent to Bill@adjustingworld.com
Is ACOEM Applicable after 90 Days?
Stephen L. Kline, Esq.
ARMSTRONG LAW FIRM
stephenk@arm-law.com
Applicant’s Attorneys are making loud noises again about the limitation of ACOEM to the first 90 days. Very limited support for this position comes from one panel decision Hamilton v. Goodwill Industries, 2004 Cal. Wrk. Comp. P.D. LEXIS 87 where the WCAB Panel held that ACOEM Guidelines were inapplicable because they applied to ''acute'' injuries only, which WCAB interpreted as first 90 days following injury, and that, because Guidelines were inapplicable, applicant had no burden to rebut presumption of their correctness by ''preponderance of the scientific medical evidence,'' pursuant to Labor Code § 4604.5.
The Stockton Judge, the WCAB and the defense counsel all failed to cite and argue Labor Code section 4600 (b) which states,
“ As used in this division and notwithstanding any other provision of law, medical treatment that is reasonably required to cure or relieve the injured worker from the effects of his or her injury means treatment that is based upon the guidelines adopted by the administrative director pursuant to Section 5307.27 or, prior to the adoption of those guidelines, the updated American College of Occupational and Environmental Medicine's Occupational Medicine Practice Guidelines.” Emphasis added.
Bad habits repeat themselves. It is apparent that another Work Compensation Judge (WCJ), the WCAB and defense counsel again failed to cite and argue Labor Code section 4600 (b). In an Anaheim WCAB case, the WCJ cited Hamilton as part of the basis for his opinion that epidural injections requested two years post injury by a primary treating physician should be authorized.
On July 8, 2005, the Fourth District Court of Appeals denied a Writ in the matter of ICW Group/Explorer Insurance Company v. WCAB (Ulloa), 70 Cal Comp Cases ***. Concerns have been raised because the Writ’s denial may be argued to give life to the erroneous Hamilton concept that ACOEM is only applicable to the first 90 days.
A closer look at the Court of Appeals opinion indicates that the defense in this matter consistently made one mistake after another. First, they failed to forward all of the utilization review decisions to Applicant's counsel, after the applicant became represented, as requested. Then, they relied on a QME who “opined that Applicant was not in need of ''active medical care.'' The same QME also opined that Applicant would need medical care for periods of ''significant increased symptoms in the form of orthopedic re-evaluation, nonsteroidal anti-inflamatory medications and brief courses of physical therapy.'' The defense problems get compounded when they failed to follow the utilization review timelines.
The WCAB merely adopted the WCJ’s denial of Reconsideration.
The Carrier requested review at the Court of Appeals based on three separate grounds: The first was that “ WCAB erred by limiting the use of the ACOEM guidelines to the acute stage of an injury”; the second was that WCAB erred by “finding their utilization review decisions untimely;” and third that the WCAB erred by “disregarding the defense QME report”.
In denying the Writ the Fourth District said, “Regarding the first and second issues, even if the WCAB did commit the claimed errors, their correction would not affect the outcome of the case because the WCAB decided the case on alternate grounds”.
There is nothing in this language that approves of Hamilton and its 90 day theory. In fact, there is a strong recognition that the WCJ and the WCAB were incorrect in their limitation of ACOEM. In criminal law, we used to call that “harmless error.”
The Court continued, “Regarding the second and third issues, the record is inadequate to support a grant of review because ICW did not include the treatment requests, the utilization review decisions, or the QME report with its petition.”
“Finally, regarding the third issue, the WCJ determined Ulloa was experiencing significant increased symptoms, which ICW's QME acknowledged would require further care. ICW does not dispute these findings or establish the underlying.”
So back to my original question, does ACOEM apply after the first 90 days of an injury?
Let’s look at the Statute and listen to the Legislature: What kind of treatment does one provide for an industrial injury? The answer is “reasonable and necessary to cure and / or relieve the injured worker from the effects of his / her injury”.
Is there any statutory definition of the language stated in the preceding paragraph?
You bet. Labor Code section 4600 (b) defines that treatment as the AD’s guidelines as soon as they are drafted, ACOEM, or other evidence based medicine.
Finally, in support of my argument, the WCAB en banc, in Simmons v State of California (SCIF), 70 Cal Comp Cases 866 (June, 2005) stated,
“As to the ACOEM issue in this case, SCIF is correct: (1) that it is liable only for medical treatment reasonably required to cure or relieve the effects of the injury ( Lab. Code, § 4600); (2) that, under the law presently in effect, ''reasonably required'' medical treatment generally ''means treatment that is based upon . . . the updated [ACOEM guidelines]'' ( Lab. Code, § 4600(b)); and (3) that the ACOEM guidelines are ''presumptively correct on the issue of extent and scope of medical treatment, regardless of date of injury.''
From the Simmons decision, it appears the WCAB acknowledges the new and strict limitations created by newly enacted Labor Code Section 4600(b). From Hamilton and this Writ denial in ICW Group, it also seems clear the WCAB and the Courts will not perfect the defense for a defendant. More than ever, it is critical that the issues of UR and L.C. 4600(b) be properly presented before the WCAB to achieve the result which is appropriate. If your representative at the WCAB fails to raise the appropriate issues and present the necessary evidence, these are the results to be anticipated.
Lori Webb, D.C., Q.M.E.
Drwebb@adjustingworld.com
Did you hear the latest news regarding chiropractors who are performing manipulation under anesthesia (MUA)? In late August four chiropractors were arrested for performing manipulation under anesthesia. According to the District Attorney and the Department of Insurance, MUA is a medical surgical procedure that is not within the chiropractic scope of practice. It is considered practicing medicine without a license.
In the course of my employment I have been working closely with a large insurance company. Contacts that I have at this company said they have been investigating these docs for months and more arrests are on the way.
You would be surprised to see how often I see a request for manipulation under anesthesia. A specific trend I have seen lately occurs when the Primary Treating Physician, who is a chiropractor, refers the injured worker out for a physiatry (pain management) consult. The physiatrist then recommends manipulation under anesthesia which the Primary Treating Physician will perform and the physiatrist will act as the anesthesiologist. In some cases MUA would be contraindicated for the injury sustained.
This procedure itself requires the injured worker to undergo 3 consecutive days of manipulation under anesthesia. This means three surgery center bills (which the chiropractor may have a financial interest), three anesthesiologist bills, three bills from the chiropractor performing the procedure, and three bills from the chiropractor who is “assisting.” At times the injured worker must fly across the state to have the procedure done, thus incurring food and lodging expenses. After the three days of manipulation under anesthesia, then an eight week course of “rehabilitation” takes place under the direction of the treating chiropractor. See where I am going with this??
The ACOEM Guidelines do not support manipulation under anesthesia as there is no real research that demonstrates benefit, and there are significant risks associated with the procedure. In the worker’s compensation world of utilization review it is never authorized, yet chiropractors continue to perform the procedure and just file a lien for their services.
Most chiropractors that perform this procedure obtain their education and “accreditation” in Texas through one of the chiropractic colleges, where the chiropractic scope of practice differs. In relation to the huge number of chiropractors in California, only very few California licensed chiropractors perform MUA. Unfortunately, it’s the story of the few bad apples giving the whole barrel a bad name.
About the author: Dr. Webb is the Manager of 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, peer review, and utilization review services. You can contact Dr. Webb at Drwebb@adjustingworld.com.
Dear Joan:
It would be great if you would do a column on the B____ in the Workplace. She can get away with doing as little work as possible and spends a great deal of time fighting with and degrading her co-workers. She gossips and continually tattles on her co-workers to the boss. Honestly, sometimes you would think we were in grade school with the tattling.
She is sweet as pie in front of the boss but backstabs her, too...
More >>
Title: NURSE CASE MANAGERS
Location: All of Northern California
Job Duties:
- Experienced Medical Case Managers
- Must have previous case management experience
- Local travel is required
- Must be computer literate
- Licensed in state of employment RN CCM & Bilingual a plus
Title: WORKERS' COMP ADJUSTERS, CLAIMS ASSISTANTS, & SUPERVISORS
Locations: San Francisco, Oakland, Concord, Walnut Creek, Pleasanton & San Jose
Job Duties:
- Adjusters and Claims Assistants
- Must have a minimum of 3 years experience handling workers compensation cases
- Knowledge of litigation, medical and rehab a must
- SIP a plus
Title: MEDICAL CREDENTIALING ASSISTANT
Location: Oakland
Job Duties:
- Processing credentialing and recredentialing applications of physicians, ancillary and allied health professional
- Working with the Medical Director and Legal Department to follow-up on any peer review or quality of care issues.
- Preparing written materials for special peer review sessions and appeals.
- Contacting provider offices to obtain medical records as needed for peer review.
- Evaluating applicant/provider applications for completeness and compliance in accordance with approved policy and procedures, and NCQA credentialing criteria and processes.
- Other duties as assigned.
EDUCATION OR TRAINING:
- 3-5 years experience within a healthcare/managed care environment
- 2 years of previous experience in credentialing
Title: ACCOUNT EXECUTIVE
Location: South Bay
Job Duties:
- Develops and maintains favorable relationships with new and existing clients.
- Ensures that organizational services consistently meet client needs.
- May be responsible for sustaining and renewing client contracts.
- Familiar with a variety of Healthcare/ Insurance concepts, practices, and procedures. Relies on extensive experience and judgment to plan and accomplish goals.
- Will be expected to attend industry related functions and events
- Performs a variety of tasks. May lead and direct the work of others. A wide degree of creativity and latitude is expected.
Benefits: PTO, medical, dental, vision
Send resumes to recruiter@siennastaffing.com
Have an insurance related event coming up?
Email us the relevant information and we can place it in our Events Calendar. Send us a note with the relevant facts and sponsoring organization to eventform@adjustingworld.com
POLL
Results of the August PollShould CIGA be Responsible for Contribution to other Carriers?
|
||||
|
Join our email list
Missed an issue of Adjusting World? Go to www.siennastaffing.com to our newsletter archives
©2003-2005 Adjusting World is a publication of Sienna Staffing @ work for you™ Disclaimer/Limitation of Liability