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• Editor’s 2 Cents: A Reader Hijacks the Column
• Sounding Board: Recurring Need for Treatment
• Legal Update: How a $2,192.72 Lien Could Ruin Your Day
• Joan Lloyd at Work: The 3 Rules of Smart Networking
• Job Alert: We're looking for...
• Events Calendar
• Poll: Will the Reforms Strengthen the Work Comp System?
• The Last Laugh
• November Poll Results

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A Reader Hijacks the Column

William Nathans
Editor

Response to: Medical AOE/COE exams through a panel QME (Sept 05)

Hi Bill,

I read your Sept. article and the new difficulties that adjusters are experiencing with the new SB899 changes, namely, that of the LC 4061.5 and how the P/QME process becomes involved.

First of all, my interpretation is that first and foremost per LC 4061.5, the PTP is the medical expert that must determine causation of an injury. With the introduction of MPN rules/regs the PTP would be an MPN physician. Assuming the IC/ER did their part in timely and appropriately referring the IW to an MPN provider, it is then the PTP's duty to determine causation.

The difficulty I've been experiencing is simply getting a comprehensive narrative where causation is addressed; rather than box #21 simply being checked off as industrial.

I think to address your question and issues one needs to look at the necessity and appropriateness of a P/QME for an AOE/COE exam/determination. I think generally, the appropriate times to utilize a P/QME are when various circumstances arise that dictates the need. And personally, I feel the adjuster rarely should be requesting the P/QME. This is a tool mainly for the claimant to utilize. Obviously there are exceptions and the main one is when the adjuster disagrees with the PTP regarding causation.

The following two scenarios can more or less fit into most circumstances for an AOE/COE determination or lack there off: For example, EE files a claim with ER, or better yet complains of an industrial injury. The ER timely refers the claimant to a MPN provider. A couple of things can happen: A: He can go or B: not go.

A. Should the EE go, then it's the adjuster's responsibility to bug the doctor until they thoroughly determine causation and make a decision. Should the injury be determined non-compensable, you issue a denial and offer the IW a P/QME but be diligent about getting a comprehensive report from the doctor on why the claim is medically non-compensable. Not only to document one's file, but also to provide something to the P/QME to reinforce our position for the denial. Should the doctor accept the injury and the IC disagree, then obviously a P/QME is needed if the 'PTP' does not address issues we may have relayed to them. But a P/QME would not be appropriate, just because we don't want to accept the claim and there are not other mitigating circumstance. Should the claim be accepted by the 'PTP', the question remains, due you continue the claim on a delayed status or accept it? I feel the claim should be accepted and UR approved treatment authorized, since there has been a medical determination already. And once the P/QME report is received, that report would take precedence over a normal PTP's report of industrial causation. Should the claimant be represented then the same guidelines above apply more or less, except for the option of an AME to determine causation first be offered.

B. Now let's say the EE does not go to an MPN affiliated physician; whether represented or not. This is where there seems to be no guidance from the Labor Code. If represented, and the AA refers them to a doctor not in the MPN, you still have a valid denial, in that LC strictly says the 'PTP' must determine causation. A PTP is a provider within an AD approved MPN and that's it. I would send a denial referencing this LC, BUT ONLY, if I diligently did all I could to direct the claimant into an MPN provider for a consult, or let them know they could schedule the same with whomever they chose. However, it could be the AA's argument that if the IW was not timely referred and that because of that, the IC/ER has lost MPN medical control and they can send the IW for treatment anywhere. If there is a hint that this is a legit argument because in fact the ER/IC did not refer the IW for treatment within 24 hours once the DWC-1 was rec'd, then offer an AME to determine causation. But remember a DWC-1 must be on file, but should my investigation find that the ER was aware of the injury, they should still be referring the claimants for treatment within 24 hours.

To Recap: There is nothing in the LC that says a P/QME is necessary to determine medical causation if the IC/ER feels it may not be work related. It is essentially the PTP's responsibility to determine medical causation. Now, when a decision has been determined and there is a disagreement, then the P/QME becomes necessary. Regs. still state the IC is entitled to our own medical exams to determine causation. Correct? Or has that been repealed? I don't think it has, but let me know. If it has not been repealed, then it only further strengthens the argument that that includes a determination by an MPN "PTP", and should the claimant fail that exam, you have a valid basis for denial, LC 4060, essentially echoes that also see LC 4053. Unless again, there is evidence that the ER/IC did not timely refer the claimant for treatment, but even then, I would still argue the denial is valid if certain conditions have been met.

Regards,

David Hornback
Claims Examiner

Bill’s Response:

I have thought about this as well, however, the pertinent Labor Code section reads:

(d) If a medical evaluation is required to determine compensability at any time after the claim form is filed, and the employee is not represented by an attorney, the employer shall provide the employee with notice either that the employer requests a comprehensive medical evaluation to determine compensability or that the employer has not accepted liability and the employee may request a comprehensive medical evaluation to determine compensability. Either party may request a comprehensive medical evaluation to determine compensability. The evaluation shall be obtained only by the procedure provided in Section 4062.1.

The key word is shall. I believe that the word shall would be interpreted as being mandatory. If it is, the PTP opinion on compensability would not matter. This section of the Labor Code also outlines the only procedure to determine medical compensability which is through the QME process, which takes us back to problem of the time limits of 5402.

Suggestions can be sent to Bill@adjustingworld.com

Recurring Need for Treatment

I worked as an Auditor in the old Self-Insurance Plan in the 80's in L.A

You often see an employee who has recurrent bouts of temporary disability and/or need for treatment. That is not uncommon. Each claim is a new claim. There may never be a claim for P.D., although it often comes to that. But meanwhile, just handle each claim as a new claim, and look at the circumstances that are causing this problem. Usually it is ergonomics

It is really not too complicated. Medical treatment does not automatically lead to P.D.

John Norman Law Rating Specialist

How a $2,192.72 Lien Could Ruin Your Day

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

With the passage of SB 899, Labor Code section 5402 (c) was added. It states:

“Within one working day after an employee files a claim form under Section 5401, the employer shall authorize the provision of all treatment, consistent with Section 5307.27 or the American College of Occupational and Environmental Medicine's Occupational Medicine Practice Guidelines, for the alleged injury and shall continue to provide the treatment until the date that liability for the claim is accepted or rejected. Until the date the claim is accepted or rejected, liability for medical treatment shall be limited to ten thousand dollars ($10,000).”

Okay, this seems simple enough …. While a claim is on delay, ACOEM compliant medical treatment must be provided until the claim is accepted or rejected up to a maximum of $10,000.

Section 47 of the Reform bill provides,    “The amendment, addition, or repeal of, any provision of law made by this act shall apply prospectively from the date of enactment of this act, regardless of the date of injury, unless otherwise specified, but shall not constitute good cause to reopen or rescind, alter, or amend any existing order, decision, or award of the Workers' Compensation Appeals Board.”

This section, while not codified, makes the SB 899 reforms effective to all cases final regardless of the date of injury, as long as a final order has not been issued.

Well, in Southern California, one clever lien claimant has formulated a very creative argument. In his case, the injured worker filed her claim in December, 2002. The carrier put the claim on delay and within the ninety days denied claim.

During that period, the worker treated at the chiropractor. The claim was finally resolved with a Compromise & Release with a Thomas finding requested. The Workers Compensation Judge (WCJ) approved the C&R with the Thomas finding.

The carrier paid a portion of those chiropractic charges that were incurred during the delay period. However, there was a balance which the Lien Claimant sought to have paid at a lien trial. His argument was because LC 5402 mandates that medical treatment should be paid during the delay period and since there is no “saving clause” in that section, then the retroactive provisions should apply to his lien claim. In other words, defendants are liable for treatment rendered while a claim is on delay, regardless of the date of injury. The Lien claimant also made presented evidence that the treatment was ACOEM compliant and thus should be paid

The defendant carrier which has 60% of the work comp market fired back and made a claim for the repayment of the amounts that they had paid during the delay period. They argued against 5402 retroactivity as there was no legislative intent to interpret these provisions to be used this way. They also argued that carriers had not reserved for these types of claims and thus they should not be held responsible two years post injury. Nothing was done to challenge whether the treatment was ACOEM compliant or reasonable and necessary as defined by Labor Code section 4600 (b).

The WCJ at the Oxnard Board found in favor of the lien claimant. She relied on the Kleeman and Marsh cases that allowed the retroactive application of the SB 899 laws to cases which were not final as of April 19, 2004 … the effective date of the legislation. Interestingly, she made no finding that the treatment rendered by the chiropractor was ACOEM compliant. The defendants have filed for Reconsideration.

What is the impact of this case?

Most importantly, the case is not precedent (see last month’s article). It is limited to the facts and not citable. It can provide a blueprint for lien representatives and chiropractors to push against the inattentive defendant.

But there is an anecdote. The defendant missed the thrust of the 5402 provisions in that the treatment that is rendered MUST be ACOEM compliant. They failed to raise that issue and they failed to present evidence to counter the contrived machinations that the lien claimant raised to show that the treatment was compliant.

If defendants are going to fight lien claims, then take the time and effort to make sure that the defenses are in order. SB 899 gave us some good tools, but they need to be used. The Judges are not going to use them for us. If it’s not worth the effort to do it right, settle the claim.

Bad cases make bad law. Let’s hope these defendants come to their senses and let this case be limited only to its facts by paying the $2,192.72 plus interest. Don’t ruin anymore of our days.

Thanks for your attention. Have a pleasant Holiday season!

Title: UR NURSE COORDINATOR

Location: Oakland, CA

Job Status: Temporary Assignment, possible permanent position

RESPONSIBILITIES

• Receive and review prior authorization requests for, home health, PT/OT/ST, durable medical equipment and supplies and out of area services, non participating provider requests directing staff to communicate with providers regarding authorizations.
• Timely Concurrent Review of inpatient admissions.
• Communication with admitting and/or the primary care physician with alternative methods to improve patient care
• Assist in coordinating discharge planning and other individual care management activities as appropriate.
• Follow up telephone contact with members that present with targeted care needs post discharge, ensuring communication and continuity of care with the member and other care providers.
• Coordinating out of area patient transfers, organ transplant evaluation.
• Initiate and manage the disenrollment of Medi-Cal members (including members assigned to Community Center Health Network, (CHCN) who are accepted for transplant (except kidney), members who require long term skilled nursing for 60 days or greater.
• Initiate communication with the delegated providers, for their assigned members that are receiving inpatient and outpatient care outside of their contiguous county; and for members that reach the plan’s outlier category. Ensuring weekly communications for tracking and monitoring appropriate coordination and medical management.
• Problem identification and resolution in conjunction with the Utilization Manager, Director of Quality Management and the Member Service Department to enhance the quality of patient care/satisfaction and to monitor quality of care and reduce plan liability.
• Assist Utilization Manager in tracking and trending utilization and potential quality and potential trending indicator data, by identifying these situations in the general day to day functions of the job.
• Other duties as assigned

EDUCATION OR TRAINING EQUIVALENT TO

• Registered Nurse or Licensed Vocational Nurse
• Certified Professional Utilization Review/Utilization Management (optional)

QUALIFICATIONS

• Active California Registered Nurse License or Licensed Vocational Nurse
• At least 3 years of previous managed care experience
• Experience with UR
• Ability to work within a broad systems perspective.
• Experience in applying medical management criteria i.e. Interqual, Milliman and Robertson,
• Some familiarity with Title 22, Title 10
• Experience in use of various computer system software as well as Windows, Microsoft Word, Microsoft Excel and Microsoft PowerPoint.
• Ability to communicate effectively, both verbally and in writing.

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

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