The Examiner’s Point of View
William Nathans
Editor
I received the following e-mail from one of our readers. I would like to thank the doctor for taking the time to write and ask the question. I will try to answer from an examiners point of view.
Dear Mr. Nathans,
Perhaps you can help me out. I am an occupational physician in Silicon Valley and over 50% of my patients are highly motivated employees (who typically work over 40 hours per week at their computers) and suffer from a variety of overuse syndromes of the upper extremities. Most of these have never been on TTD or light duty for their industrial illness. Although they rarely report complete resolution of their symptoms, they improve significantly under my care and their residual symptoms are tolerable. They often have a marginal and acceptable amount of "presenteeism" with a slight decrease in productivity at work, and sometimes a decrease in recreational activities as a means of managing their condition. At that point I perceive their condition as one that is chronic and fluctuating in severity, which requires consistent maintenance, typically regular stretching and exercise, proper technique and ergonomics, and reasonable work hours. However, in a minority of cases, after discharge, symptoms worsen despite consistent self-care, or because of neglect or an increase or change in workload. These symptoms often respond to a short course of physical therapy or another cortisone injection etc.
My conundrum is whether at the time of discharge I should include these potential treatments as "future medical." As I'm sure you know, in this population flare ups are common. However, I find it difficult in advance to predict which of these patients are likely to suffer a recurrence. I do not want to over prescribe future medical and complete a PR-4/P&S report on all these individuals who typically have 0% disability by the AMA Guides. But, certainly a significant percentage will have flare-ups that require medical attention. Would it be better to discharge with a PR-2, not include future medical, and hope that if there is a recurrence the patient/employer will be able to have the claim reopened to regain access to treatment for a recurrence/flare up? Or, should I be inclusive and have a low threshold for dictating P&S reports describing future medical for these otherwise simple patients/discharges? As a side note, as a primary treating physician I used to rarely complete PR-3's, and met everyone's needs with a PR-2, but with the changes in WC I am seeing many more employees struggle to have their claims re-opened and get medical treatment (even for straight forward flare-ups, less then a year post discharge, and while still employed with the same employer). I don't want to deny patients care, but I also don't want to over burden the system, or earn the unenviable reputation of being inappropriately generous with future medical.
Your input or advice would be appreciated. If you could provide a reference from the state or an insurance carrier or some other reliable resource that too would be great, as I have yet to find updated guidelines for physicians providing care to WC patients in California.
As an examiner I can appreciate your dilemma. It is my opinion that you should consider factors like the severity of the injury. For example based on your experience, would someone who is diagnosed with a strain have a spontaneous flare-up? How many times does a non-industrial patient have spontaneous flare-up? I realize that a herniated disc or a post-surgical claim is more likely to need a provision for future medical treatment. If you are going to provide a provision for future medical treatment, it would make my job easier if the award was couched in evidence based guideline language. This would make everyone’s job easier since it would eliminate a lot of the potential conflicts that arise. We are now living in the ACOEM age, if it does not apply, than there are other evidence based guidelines that would apply. I would suggest contacting the medical unit (formerly the IMC) for advice. They may be able to provide you with the direction you seek. The only other advice I can give you is that if you believe that the patient needs a provision for future medical award then give one. The one thing that I appreciate is if the doctor is honest with me.
Suggestions can be sent to Bill@adjustingworld.com
“If my coworkers would just spend as much time doing a good job as they do dishing up the dirt, we’d be a lot more productive,” my colleague told me recently. “Honestly, everyone complains about all the gossip but they are all guilty of adding grist to the gossip mill.”
Most workplaces have grapevines with plenty of juice. It’s human nature to comment on the comings and goings and what we think about it. While most gossip is just idle chatter, sometimes it can become a distraction when it consumes too much time or turns ugly.
Let’s take a look at some of the typical grapes on the vine and what you can do to nip gossip in the bud. More >>
WCAB CIVICS 101… When Is A WCAB Decision Binding Authority?
Stephen L. Kline, Esq.
ARMSTRONG LAW FIRM
stephenk@arm-law.com
As most of us know, decisions are handed down all the time. A question arises, when does one of these cases become binding authority and thus guidance to claims examiners and counsel?
The system works like this: a hearing, trial or some proceeding is held before a Workers Compensation Judge (WCJ). He/she issues a Findings and Award or an Order. That decision can be reconsidered by or removed to the Workers Compensation Appeals Board, (WCAB) which is a commission of seven members. To decide cases they may split off into panels of three or decide the matter --- en banc --- meaning all of them review the matter. These are the WCAB decisions.
When the WCAB issues a decision, it can be a Panel decision of which a few people have knowledge. These decisions are not binding, except on the parties who are part of the decided case. Sometimes, a Panel decision is called “Significant” which means that while it is not binding authority, it is of note and guidance to WCJs, but not of binding precedent. From the DWC website, “Cases that are identified for dissemination by the WCAB in order to address new or recurring issues of importance to the workers' compensation community. Significant Panel Decisions have been reviewed by each of the commissioners, who agree that the decision merits general dissemination.”
Then there are en banc decisions where the WCAB speaks as a whole. Again, from the DWC website, “a matter reassigned by the chairman on a majority vote of the commissioners to the Appeals Board as a whole in order to achieve uniformity of decision or in cases presenting novel issues.” These decisions are binding precedent on WCJ and the community. However, what happens when an aggrieved party seeks to overturn the WCAB? Do WCJ’s have to follow that ruling while it is being appealed?
The first step is to file for a Writ of Review in the local State District Court of Appeal. If the Writ is granted, it will allow the appeal process to move forward. The delay in hearing the case could be upwards of 9 to 15 months. When a Writ is granted, what happens to the WCAB rulings while the hearing process is inching along?
These questions are not just civics lessons, but have real importance as many of the SB899 cases are working their way through the system. Since April 19, 2004, the WCAB sitting en banc has decided the following:
The Wilhette decisions set out the procedures for Expedited Hearings concerning the non-certification of treatment by Utilization Review;
The Sandhagen decisions ruled that utilization reports are inadmissible if the exact time lines of the Labor Code section 4610 (UR) are not followed;
The Nabors decision indicated that the percentage of a previous Award should be subtracted from the new Award without regard for money or weeks of disability; and
The Escobedo decision which mandated that apportionment of permanent disability is to be based on causation, whether asymptomatic or a pre-existing condition.
On October 7, 2005, the WCAB issued a Significant Panel Decision Diggle v Sierra Sands USD, 70 Cal Comp Cases ---- answering those questions.
Ms. Diggle was injured in 1993 and entered into a Stipulation with Request for Award in 1997 for 12%. She sustained a new injury in 2000 and her new disability was rated at 70%. The parties submitted three methods to the WCJ to let him decide how to deal with the prior Award. He could subtract the percentages to reach 58%. He could place a monetary value on each amount through the money charts and give her the monetary difference. Or, he could take the number of weeks that 12% equaled and deduct it from the number of weeks that 70% equaled and multiple the difference by $170.
The WCJ said he was bound by the Nabors principle as it had been issued by WCAB en banc. The Significant Panel agreed stating that any other decision would leave the WCAB in limbo until the final decisions of all appeals. They indicated that until a Court of Appeal either overturns an en banc decision or stays it pending an appeal, an en banc ruling is binding on WCJs.
In the coming months, this will be important as those en banc decisions are being reviewed by the Court of Appeals. (No writ has been granted yet in Escobedo.) While the Sandhagen ruling, in this writer’s opinion is wrong and hopefully will be overturned, the Nabors and Escobedo cases assist us in obtaining fair settlements and making sure that the WCJs who we deal with day in and day out are clearly following SB899.
Class dismissed …. Thanks for your attention.
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
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 October PollIs UR an effective way to cut off Chiro Treatment?
|
||||
|
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