August 15, 2011

MEDICAL REPORTS FROM NON-MPN PHYSICIANS ARE

INADMISSIBLE AND MAY NOT BE RELIED UPON TO AWARD COMPENSATION

In a decision which can only be characterized as “stunning,” the WCAB has filed an En Banc Decision after Reconsideration in the case of Elayne Valdez v. Warehouse Demo Services, declaring that the medical reports of non-MPN physicians are neither admissible before the WCAB nor can they be relied upon either to award medical treatment or compensation, including TD and PD.

In a “nutshell,” this holding can be distilled to this:

• If the defendant has a validly established and properly noticed MPN^[2], then medical reports from any out-of-network or non-MPN physician are now inadmissible and may not be relied upon to support any WCAB  award either for medical treatment or compensation, including T.D.
• The defendants are not liable for the cost of the out-of-network medical treatment rendered by a non-MPN provider.
•  The defendants are not liable for the cost of any medical report from an out-of-network primary treating physician.  This would also include any charges for review of records, diagnostic tests, X-rays, MRI’s, laboratory work, etc., since they are not recoverable expenses under this decision.
• If the applicant goes outside a validly established and properly noticed MPN, the selected physician is not the PTP and this improper selection does not otherwise change the status of any prior MPN treating physician, who remains the PTP.
• This decision recognizes that the Labor Code currently provides the applicant with two important remedies within the MPN: (1) Free choice to any physician within the MPN; and (2) Second and third opinions from a physician within the MPN for issues relating to diagnosis or medical treatment, followed by Independent Medical Review (IMR).
•  Neither Labor Code Sections 4605 nor 5703(a) dealing with so-called “consulting, attending, or examining physicians” can be used to support or justify the admission into evidence of medical reports from non-MPN physicians^[3] who are treating impermissibly outside of the MPN

ANALYSIS BY COREY INGBER:

This decision looks like a potential “game changer” at least in the near short term.  For one thing, if we are getting reports, billings and liens from the notorious out-of-network treating physicians, the so-called sleep, pain and psychiatric “multi-specialty clinics” and the prolific self-procuring orthopedic and chiropractic physicians, then we know that if we have a validly established and noticed MPN, that:  (1) The medical reports and other offerings from these facilities are “out”; (2) We have no liability either for the costs of the treatment or for the expenses associated with the preparation of the medical reports; (3) These inadmissible medical reports cannot later be “shoehorned” into evidence under the guise of an examining, consulting or attending physician under Labor Code sections 4605 or 5703.   This is all good.

But, you should expect that once this decision is fully digested and studied by CAAA, they will surely come up with some creative strategies for launching potential “end runs” around and collateral attacks upon this case decision, since this has been the modus operandi since the very advent of SB 899 reforms.

WHAT TO EXPECT NOW:

Here is my take:

1. WHAT ABOUT THAT NOTICE TO EMPLOYEE POSTER?: Expect nearly every applicant attorney to now automatically demand a copy of the “Notice Poster” which as of October, 2010 was changed and amended by the DWC, to include additional language and some deletions from the prior notice poster.  (Labor Code section 3550).  For any employer who does not have the latest revised Notice to Employee Poster in a conspicuous place upon the date of injury, applicant attorneys will argue that the failure to post the updated notice is a defect, for which the penalty is the failure to control treatment from day one, following the industrial injury or notice of said injury.  THIS BECOMES A CRITICAL ELEMENT TO PERFECT MPN CONTROL. 
2. You now need to be very careful and respond to every demand from applicant attorneys asking for a copy of: 1) Notice Poster pursuant to Labor Code Section 3550; 2) Pre and post injury notices pursuant to CCR sections 9767.12; 3) The applicant’s right to pre-designate a personal physician per 8 CCR sections 9780-9783.  Remember, this decision was premised entirely upon the assumption that the employer has done everything right and that all notices were posted and provided timely.  If not, then all bets are off.
3.  Expect more attention now to the Second and Third opinion process and IMR related to medical treatment and diagnosis, and we may begin seeing applicant attorneys going down this route because if they prevail at the level of the Independent Medical Review, then applicant can seek the disputed treatment or the contested diagnostic service either within or outside of the MPN.^[4]Up until now, I don’t think I have even seen the IMR process initiated since its inception.
4.  PREPARING THE MPN DEFENSE “PACKAGE” Expect some direct attacks on the MPN and specifically the pre and post injury notices.  A good practice suggestion is the preparation of an MPN defense “package” which can be used to defend the MPN and which can be easily distributed to and used by your defense counsel.  This would include copies of the employee notice poster, the pre and post injury notices and a copy of the link or the link for the access to the MPN.  Also, copies of all employee notices and benefit letters, including the timely provision of benefits under Labor Code section 5402.  And of course, having the employer or the MPN witness who can testify to this process named and made available for hearing.
5. This decision should also impact how we deal with bills and liens and current reports from NON-MPN PHYSICIANS.  My opinion is that this decision is effective NOW for all pending cases and therefore since it goes to statutory interpretation, YOU SHOULD CONISDER TAKING THE POSITION THAT FOR ALL OPEN CASES, ANY REPORTS FROM NON-MPN PHYSICANS ARE INADMISSLBLE FOR ANY PURPOSE.  Again, this assumes you have a validly established and properly noticed MPN.  THIS CREATES ENORMOUS LITIGATION AND SETTLEMENT OPPPORTUNITES.

WCAB PANEL DECISION UPHOLDS THE USE OF SECTION 15.13 OF THE GUIDES [Figure 15-19] TO SUPPORT AN ALMARAZ/GUZMAN II DETERMINATION

(Using Apples to Make Banana Pie and then calling it Red Velvet Cake)

The WCAB has issued a Panel Decision in the case of Laury v. SCIF (ADJ3400378).  While Panel Decisions are neither controlling nor citable as legal authority, they may carry some practical weight, as they are often widely circulated and they can therefore often reflect potential insights into the reasoning and thinking of at least the WCAB three member panels who decided the particular case.  Therefore, we should likely expect this Panel Decision should get some wide attention within the compensation community.

Very simply, Section 15.13, found on page 427 of the Guides, featuring Figure 15-19, is nothing more than an illustration showing how a DRE or ROM based impairment assessment can be converted from whole person impairment to a regional spinal impairment.  According to the Guides, this is the difference between “the involved spine region rather than the whole person.” ⁱ Therefore, this section represents nothing more than a conversion illustration from the DRE and ROM based whole person impairment (WPI) to regional spine impairment.

By illustration, a cervical impairment ratable under the DRE III at 15% WPI would be converted to 43% spinal regional assessment impairment. This is not a transposition of the WPI into a higher number, but represents only the proportion the cervical WPI has to the entire spinal region.  In further illustration, if we take an injury to the lumbar spine, resulting in impairment based on the ROM method at 30%WPI, this would convert to 33% spinal regional assessment impairment.

By simple logic, Section 15.13 should have nothing to do with whole person impairment assessment, except to show how it can be converted to regional spinal assessment impairment. But there is no indication from this two paragraph section in the Guides that it was ever intended as an alternative method for determining impairment. Nonetheless, we are seeing some physicians justifying an Almaraz/Guzman II determination, using Figure 15-19 as a license with which to assess a much greater level of whole person impairment.  This practice is so convoluted and afar from the very principles upon which the Guides are based, that it is like using apples with which to make banana pie and then calling the final product red velvet cake.  Therefore, by permitting the use of this irrelevant Section 15.13 to determine whole person impairment is tantamount to a wholesale rejection of the Guides and the principles upon which the Guides are based.ⁱⁱ

Unfortunately, this WCAB Panel upheld the AME’s use of Figure 15-19 at Page 427, in order to support an Almararz/Guzman II finding.  In this case, the AME took Figure 15-19, which weighted lumbar impairment to the totality of spinal regional impairment at 90% and upon the AME declaring that, “This man in my opinion has lost 60% of the use of his lumbar spine excluding the impact of his sexual function and sleep disorder.  Therefore 60% of the lumbar spine function multiplied by .9 corresponds to a 54% WPI.”ⁱⁱⁱ Clearly, the 90% represented here, was intended to illustrate that a ROM based whole person impairment represented a proportional 90% of the spinal regional impairment and was not otherwise intended as a direct or alternative assessment of WPI.

We find this decision, and the facts upon which it is premised, to be troubling on a number of levels.  For one thing, there is neither discussion nor analysis as to why the AME found Figure 15-19 to represent a more “accurate” assessment of impairment than the ROM determined whole person impairment. For another thing, while the WCAB did reflect that Figure 15-19 “is within the four corners of the Guides,” they provided little rationale for supporting the AME’s use of this section and why it otherwise represented a more accurate level of impairment.”^iv It appears the WCAB ignored the fact that Figure 15-19 was a conversion device and not an alternative method of impairment assessment.  There is also no apparent reflection that the AME had determined this conversion formula reflected a more accurate picture or composition of the impairment assessment.  The standard of “Accuracy” is now the essential foundation for justifying an Almaraz/Guzman II determination, under the En Banc decision in Almaraz/Guzman II.  Also, it is clear that Figure 15-19 was meant to be nothing more than a conversion tool, in order to demonstrate the proportionality of a whole person impairment expressed as regional spine impairment. This very conversion is based upon a whole person impairment, either by the DRE or ROM method converted to a regional impairment (within the spine—not whole person) and was not intended to provide a direct method for converting WPI to a higher level.

This Panel decision seemingly misconstrues the meaning of Section 15.13 by permitting the AME to ignore the conversion from DRE or ROM based WPI to regional spine impairment, but rather going directly to a new WPI assessment, based upon the use of an element of the conversion number.  This number is abstracted from a single sentence under Figure 15-19: “The whole spine divided into regions indicating the maximum whole person impairment represented by a total impairment of one region of the spine. Lumbar 90%, thoracic 40%, cervical 80%.”^v In other words, instead of a simple mathematical conversion from DRE or ROM based WPI to regional spine impairment, this decision permits the physician to simply use the conversion as a direct transformation of a DRE or ROM based WPI to a regional WPI, and then substituting WPI for regional impairment.  The illustration presented by the Guides at Page 427 demonstrates that a neck injury resulting in a 20% DRE based WPI would convert to a 57% regional spinal impairment of the cervical spine,^vi not a 57% WPI. This is the use of apples to make banana pie and then calling it red velvet cake.

In its decision, the WCAB has upheld the AME, who concluded the applicant had lost 60% use of his lumbar spine and then applying that number against the 90% proportion the ROM based lumbar WPI is to the spinal region, to calculate a new WPI of 54%.  The flaws here include:

1. Section 15.13 is nothing but an illustration showing spinal WPI, based upon the DRE or ROM method, as a relative percentage of the entire spinal region; it starts with the premise that the conversion involves a DRE or ROM based rating.  So, the physician would use the weights here in order to convert WPI to a percentage of the spinal region.  But the converted number is not a WPI number, but a regional impairment number! To permit the regional impairment assessment to reflect a new WPI is to ignore the intended purpose of Figure 15-19.
2. The use of .90 as a multiplier, described as “the maximal WPI due to the lumbar spine is 90%” also seems to misconstrue the plain meaning of section.^vii The .90 is not the WPI but rather merely the “percentage” of lumbar WPI expressed as a percentage of the spinal region impairment.
3. This Panel seems to have ignored the current standard of proof required to factually sustain an Almaraz/Guzman II finding; i.e. more accurately reflective of the actual impairment.  This is ironic, since the conversion formula found on Page 427 appears to have been both misconstrued as well as misapplied, so how can a trier-of-fact correctly determine that the impairment assessment made by this AME is now “more accurate?” Here, the Panel seemingly permitted an A/G II finding without holding to the requisite foundation of “accuracy” as the basis.  Instead, they seemingly permit the now supplanted standard of “proportionality.”

On a going forward basis, we should probably anticipate that some applicant attorneys and treating physicians will regard this Panel Decision as a sanction permitting the use of Section 15.13 as a new or alternative impairment generating device.  We believe that using Section 15.13 as an impairment creating tool represents an improper and unsupportable use of the Guides and should be opposed.

You should be ready to defend against any physician who attempts to establish higher levels of impairment, using this section.

°Copyright 2011 Landegger, Baron, Lavenant & Ingber

i  American Medical Association Guides to the Evaluation of Permanent Impairment Pp. 427

ii “Impairment percentages estimate the extent of the impairment on whole person functioning and account for basic activities of daily living, not including work.’ Guides at Pp 13.

iii See decision at page 4, lines 14-16)

iv See decision at page 8, line 16

v Ibid

vi Ibid

vii See decision at Page 4, lines 14/15

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The WCAB has issued an En Banc decision in the case of Jose Guitron v. State Compensation Insurance Fund.i Please note that en banc decisions are binding upon all WCAB offices statewide, until an appellate court either issues a stay or overturns the En Banc decision.

REASONABLY REQUIRED INTERPRETING SERVICES PERMITTED DURING MEDICAL TREATMENT

• Acknowledging the absence of a statutory basis for permitting interpreting services as an element of providing medical treatment, the WCAB has drawn comparison to “transportation costs” which while also not part of the statutory scheme, have nonetheless been deemed adjunctive to treatment.ii
• Therefore, drawing an analogy to the justification supporting transportation expenses as a reasonable element of medical treatment, the WCAB has now held that interpreting services are an essential adjunctive to the provision of medical treatment, under Labor Code 4600.
• Interpreting services are therefore now regarded an element of medical treatment, provided they are reasonably required for injured workers who are unable to speak, understand or communicate in English.
• Entitlement to interpreting services is not conditional upon the type of treatment being rendered.
• But the applicant must establish that he or she requires these services. The fact that the applicant simply does not speak English is not enough for this proof.iii

ENTITLEMENT TO INTERPRETING SERVICES DURING TREATMENT IS CONDITIONAL UPON PROOF THAT THE SERVICES WERE NOT ONLY REASONABLY REQUIRED BUT ALSO: [1] THEY WERE ACTUALLY PROVIDED; [2] THE INTERPRETER WAS “QUALIFIED” TO PROVIDE THE SERVICEDS; AND [3] THE FEES CHARGES WERE REASONABLE.

• Lien claimant has the burden of proving that the interpreting services in question were reasonably required. No specific method or degree of proof or admissible evidence is prescribed. This can be done in a number of ways.
• Whether or not the doctor’s staff has an available staff member to translate might be probative but not dispositive on the issue. A failure by the treating physician to request an interpreter shall not be deemed a basis to conclude that an interpreter is not reasonably required
• Lien claimant must also prove that the interpreter was actually present on the date of the treatment visit and that services were actually rendered at that time. (It was deemed “helpful” and “appropriate,” but not required, for the treating physician to reflect the presence of an interpreter, within the body of the report).
• The preferred practice is to obtain pre-authorization.
• The interpreter must be “qualified.” This means the interpreter shall either be certified pursuant to the Government Code or “provisionally qualified,” which means the parties essentially “agree” that a non-certified interpreter may render services, when a certified interpreter is not otherwise available for the medical evaluation. Also, a physician,3may use “another interpreter” if that fact is noted in the medical evaluation.iv
• The fee charges must be reasonable. 8 CCR 9795.3 provides a “fee schedule” charge for interpreting services during a medical examination but these charges are not actually applicable for interpreting services during treatment. Therefore, the fee schedule does not necessarily apply to treatment. [For examinations, the scheduled fee is the greater of either $11.25 per quarter hour with a 2 hour minimum or $90.00, or market rate].
• The 2 hour minimum ($90.00) may not apply where the treatment session takes but 10 to 15 minutes.v
• Travel time at $20.00 per hour may be added, providing the distance between the office of the interpreter and the doctor’s office is over 25 miles (not reasonable if other qualified interpreters are available on the master listing for the county where the service was to be provided).vi

COMMENT FROM COREY INGBER

This decision should come as little surprise, since we have been receiving panel decisions, essentially upholding the same reasoning, for some time. The problem of course is that this new case will encourage interpreting services to provide treatment and it will also bolster the arguments of existing lien claimants, that this decision should be applied retroactively, since the issue is one of remedy and not substantive law. In other words, you should well expect interpreting lien claimants to be more aggressive. At the same time however, this case also requires the interpreting lien claimant to provide the required proof necessary to show that the charges are recoverable. This may not be easy or simple, especially when the case-in-chief resolved long ago.

Copyright 2011 Landegger, Baron, Lavenant & Ingber

ⁱ ADJ163338/ WCAB en banc decision filed 3/17/01

ⁱⁱ “Like transportation, effective communication between an injured employee and a medical provider is an essential adjunct to treatment.” Pp 16.

ⁱⁱⁱ “the employer is required to provide reasonably required interpreter services during medical treatment appointments for an injured worker who is unable to speak, understand or communicate in English.” Pp 13

^iv PP 22

^v Pp 24

^vi 8 CCR 9795.3(b)(3)

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These new regulations would therefore apply only to dates of injury occurring on or after 10/8/10.

These new rules are contained within Title 8 (Industrial Relations) of the California Code of Regulations, CCR sections 9767.12, 9880, and 9881, and take effect October 8, 2010.

As a result of these changes, the current version of any “MPN employee notification” pamphlet and posting notices will only remain in effect until that date, and any such materials should be disposed and replaced with updated posting notices.

New Notices and Posting should be given to your covered employees and failure to do so may be deemed a waiver of these new MPN notification requirements (which are set forth in CCR 9767.12(f)) and could result in the loss of network control. The new poster should be placed in a conspicuous location frequented by employees during the hours of the workday and in close proximity to the workers compensation posting that has always been required (per Labor Code 3550 and CCR 9881).

Furthermore, the regulation regarding the notice of MPN to new employees (CCR 9880) now requires the following additional information:  a.) the right of the employee to pre-designate a personal physician or medical group; b.) a description about Medical Provider Networks which is to include that the employer may be using an MPN, what an MPN is, the pre-designation exemption from the MPN, when an employee must begin to use a physician from the MPN, and how to request information about using an MPN.

Also, the Notice to new employees should remove any reference to the rights of the employee to vocational rehabilitation services.

THE REAL CONCERN HERE IS THAT APPLICANT ATTORNEYS MAY BE FOCUSING ON ALL INJURIES OCCURRING ON OR AFTER OCTOBER 8, 2010 AND DEMANDING PROOF OF THE NEW POSTING AND IF NOT FURNISHED OR IF THE NEW POSTING IS NOT UP, THEN THEY WILL TRY AND ASSERT DAY ONE NON-MPN MEDICAL CONTROL.

We should expect a number of attorneys to take the position that there is no MPN control over an injury occurring on or after 10/8/10 unless the new posting was in place and for new hires after that date, the same argument would apply to the new employee pamphlet and contents.

You may view the requirements of the new regulations through the following link:  http://www.dir.ca.gov/dwc/DWCPropRegs/MPN_Regulations/DWC_MPN_FinalRegs.pdf

Download a printable PDF Version of this bulletin here

Date: March, 29, 2010

When Should I Use an AME?

As most of you are now aware, we generally advise and counsel against the utilization of an Agreed Medical Examiner (“AME”) in the vast majority of cases and under most common factual scenarios.  For one thing, AME’s tend to reflexively find some way in which to determine the existence of injury and then justify those findings or they may simply skirt the issue altogether by deferring to the so-called “Trier of Fact.”  So many times, we have reasonably legitimate expectations that the chosen AME will be fair, reasonable and responsive.  After all, didn’t we send him/her that great cover letter and what about those impressive, voluminous exhibits, including a 100 page deposition transcript?  Didn’t they even bother to read those things?  What happened?

Very commonly, we know that AME reports are generally associated with disappointing and incomplete findings, or non-responsive discussions.  More often than not, we also have to endure more reports, re-evaluations and other impairments to simply getting to the bottom line.

And there are the odds.  Applicant attorneys know by history and experience that most commonly selected, popular AME’s will mostly find some level of injury and impairment.  This explains the generally willingness of applicant attorneys to use AME’s but that use is tempered by the reality that “acceptance” of AME findings is less frequent.

WHY NO AME’S IN MOST CASES?

Here are some of my thoughts on why just saying “no” is probably the right decision in most cases:

• AME’S READILY FIND INJURY:  Always keep in mind it is just the applicant and the doctor “face-to-face” in the examination room and you are not there.  The examination becomes self-serving and even more so, when the applicant comes “prepared” by rehearsing with their lawyer.    It seems as if most AME’s tend to find some level of injury or at least to one or more contested body parts, so that a clear defense “win” is often very elusive.
• IGNORING JOINT COVER LETTER AND EXHIBITS:  AME’s may frequently ignore the joint cover letter and the accompanying exhibits and simply proceed to conduct their own inquiry, sometimes brushing aside or overlooking the very interrogatories being presented by the parties.  Other times, they may regard all cover letters as ‘much the same’ and therefore ignore selectively chosen issues, which can go unheeded.
• IT USUALLY TAKES TOO LONG: It can take several months before the applicant is actually seen by the AME.  What happens during that time when you have a TD claim or treatment issue pending?  What about the applicant who fails to attend?  What about the doctor who has to postpone?
• IS IT REALLY DONE IN ONE EXAM?:  Often, the AME will examine the applicant and then recommend a further or repeat diagnostic test, a new procedure or even a referral to some other physician before finally determining MMI and impairment.  This just starts the process of going nowhere slowly.
• AME REPORT IS INCOMPLETE?  Have you ever seen an AME report where the doctor discusses diagnosis, injury, treatment, TD and PD but ignores and therefore fails to address apportionment? You are now in the untenable position of having to either direct a joint interrogatory to the doctor or face the proposition of having to schedule a cross examination many months down the road.  It seems as if the “overlooking” of an important issue occurs more frequently than it should.  Also, some AME’s have “rules: by which they will not agree to fix something or make a correction without a formal cross examination.  This just adds to the frustration content.
• WHERE ARE ALL OF THE RECORDS?  At long last, you receive your AME report, only to discover for the first time, that the Doctor didn’t get a document or an important medical record.  Why didn’t they tell us before the examination?  Why didn’t they call and tell us? Now, we face a potentially adverse report, while having to seemingly scramble to obtain the needed but not included records, which the AME never received.  And what are the chances that the AME will get those records and then change his or her mind?  There is a maxim here.  Once the report is written it is much more difficult to get the AME to change the determinations after-the-fact.
• WILL THE OTHER SIDE NOW SETTLE? Some applicant law firms will endeavor to lull you into thinking that the usage of the AME will be the hopeful anticipated gateway for case resolution. [Ever wonder why so many applicant lawyers are overly eager to use an AME?]  Actually, with some of the firms, you might be walking into a carefully pre-designed “trap.”  While they attempt to impress you with their willingness and flexibility to go to the AME, when the report comes out, what happens if the findings are only modest-to-moderate?  Will the case now really settle?  In many instances, the short answer is “no.”  You will get the automatic “objection to the AME findings” followed by the deposition notice.     Why?  Because the applicant attorneys know something.  They know that the longer the process prolongs, the more time passes and the more opportunities the AME has to write another report, will usually tend to make the case more valuable and hence the expectations of a higher settlement, “down the road.”
• TIME FOR THE AME DEPOSITION? Question:  How many times do you not see one side or the other setting the AME cross-examination?  Most AME’s don’t want to deal with supplemental reports or responsive interrogatories in order to clarify or explain something. A few may respond to an interrogatory but this now calls into the play the willingness of applicant’s counsel to cooperate.  Why should they?  Some applicant attorneys will routinely schedule the cross-examination, knowing that with only a few well placed questions, they will more-than-likely get the AME to either recommend a new referral or another evaluation.  (“Doctor don’t you think my client should have a pain management evaluation or sleep study?)
• IS A RULE OUT OF FURTHER TREATMENT REALLY THE END? Regrettably, the answer is often “no.”  By simply going out and self-procuring or adding a “new body part,” the other side is now staring a new phase of the game.

SO WHEN DO I USE AN AME?

Here is an easy reference chart which correlates and issue to whether you should generally use an AME.  Obviously, the decision process must be accorded on a case-by-case basis, so that no rule can be applied in every case.  But the following are some suggested issue structures, which tend to correlate with whether or not to use an AME.

Always use caution when selecting an AME. One good way to test the quality of an AME is to find a recent report and look at the apportionment discussion.  Does the AME address apportionment to “causation” or to “disability.”  If the apportionment discussion is weak, the best advice is to generally “pass” on that AME.

Imbedded within these 97 pages of revised regulations is the so-called “Regulation No. 30,” which has been the subject of mounting concerns and growing frustration as claims professionals cope with yet a new set of oversight regulations, which have made an already confusing PQME process even more difficult, especially when a claim is on a delay status and consideration is being given to obtaining a compensability medical determination, under Labor Code Sec. 4060.

A strict application of Regulation No. 30 can have a potential “Catch 22” effect.  Very simply, The DWC Medical Director will not issue a 4060 QME panel if:

1)       The employer has accepted as compensable injury to any body part in the claim. [8 CCR 30(d)(2)]:   By illustration, if a claim form alleges injuries to the back, neck, arms, lower extremities, internal, psyche and nervous system, and the claims administrator admits only the neck, there is no 4060 PQME issuable for any of the other contested body parts.  For these contested body parts, only a 4062 PQME is permissible;

2)      If the claim is denied entirely: [8 CCR 30(d)(3)]:  In this case, only the employee may request a PQME for a 4060 evaluation.   For example, in the same claim as above illustrated, the claims administrator issues a claim denial, based upon Labor Code 3600(a)(1) and 3208.3 (e) “post termination” both psyche and physical.  This is a non-medical basis for the denial and therefore has no relationship to whether there is a disputed medical causation issue, which goes to the very heart of compensability, under Labor Code 4060.  Still, under these rules, the Medical Director will not permit a 4060 compensability examination.

3)      After the expiration of the 90 day period within which to deny a filed claim form under Labor Code 5402, a request for a 4060 PQME shall be issued only upon presentation of a finding and decision by a WCJ that the presumption under 5402(b) has been rebutted and an order that a QME panel should be issued to determine compensability

Needless to say, this rule provides an ongoing challenge when a claim is in the so-called “delay” stage, and the claims administrator wants to obtain a 4060 QME on compensability.  Here, it is important to remember that the DWC Medical Director will not issue the panel if either the claim has been “denied” in its entirety or any body part within the claim has been accepted.  The problem here is that this rule ignores the simple fact that there may be “multiple” reasons to contest a claim.  Also, over time, some of the grounds within which to deny a claim may change or a potential defense can give way. A claim can be denied by:

Multiple defenses can occur and interplay with the medical causation issues and therefore if a claims administrator denies a claim based upon a statutory or factual defense and is therefore not permitted to obtain a 4060 PQME, what happens when within the 90 days, that defense is withdrawn?  What takes places if the claims administrator wants to develop the medical causation issues independently of any other claim denial bases? We don’t know.

RECOMMENDATIONS:

Now more than ever, the timing issues become very important. For example, you are in the 18^th day and you may have a post-termination defense, but this hasn’t been fully developed.  If you issue the denial on that basis, then the claim is denied and no 4060 PQME shall be permitted under Rule 30.  On the other hand, you may want to make the decision to postpone that post-termination denial, obtain a 4060 PQME on the medical factual issues and then reserve your right thereafter to deny on the other grounds.  Of course, this comes at the risk of having to pay for the medical treatment per Lab C 5402(c) up to the $10,000 limit.

I am not convinced that a PQME should not issue, simply because there exists another threshold non-medical defense.  I therefore recommend the option of asking for a 4060 QME panel but telling the DWC Medical Unit that the medical causation issues have not been denied –that the claim was denied on non-medical grounds and the claims administrator is requesting a PQME on the medical causation issues, which have neither been denied or admitted.  Also, remember, a WCJ is empowered to issue an order for a panel, and when you have a hybrid case, involving both medical and non-medical causation issues, and/or legal grounds, it may be advisable to obtain an order for a 4060 Panel QME from a WCJ.

On July 18, 2009, the new Chronic Pain Treatment Guidelines will take effect as part of the Medical Treatment Utilization Schedule (“MTUS”) under Labor Code 5307.27. The regulations governing these new treatment guidelines are 34 pages long. However, the actual guidelines span some 127 pages with an “A to Z” alphabet soup approach. In other words, the type of treatment for chronic pain is stated and then determined whether recommended or not.

WHAT IS CHRONIC PAIN?

Under these rules, chronic pain is defined as “any pain that persists beyond the anticipated time of healing.”

Types of Pain: Pain mechanisms can be broadly categorized as nociceptive or neuropathic.

SOME OF THE RECOMMENDED TREATMENTS FOR CHRONIC PAIN INCLUDE

Yoga –only for selected, highly motivated patients

Work conditioning and hardening: (welcome back rehab?)

Anti-depressants

Behavioral intervention

Aquatic therapy – as an optional form of exercise

Chronic pain management programs

Education (ongoing education for the patient and the family)

Functional restoration programs

Massage therapy (limited to 4-6 visits in “most cases” so what does this mean?)

Opioids

Psychological evaluations (not because of a psyche injury but as part of the pain treatment)

Psychological treatment

Return to Work (what does this mean in this new treatment context?)

Topical analgesics (limited to some extent, but these are the notorious “compounds” being dispensed out of treating physician offices and they are truly expensive since it is hard to tell what is in them )

WHAT THIS MEANS

The new chronic pain guidelines are not just a recipe for expanded medical treatment; they are a whole veritable cookbook of treatment options, which carry very serious implications well beyond anything in ACOEM.

Chronic pain is indeed a serious and difficult condition to treat, however these new guidelines, which span over 100 pages, are a potential roadmap for some physicians to dramatically increase the extent, scope and nature of current ACOEM based treatment considerations. Also, I am somewhat concerned about the “return to work” aspect as being part of the actual regimen of treatment. It seems that rehabilitation keeps creeping back into the system in one form or another. Although it is too early to know, under these new guidelines, a part of the repealed rehabilitation program may be wending its way back in the side door, morphed into the form of a treatment plan for chronic pain.

Needless to say, everyone needs to be aware of these new guidelines. I strongly suggest that you ensure that your Utilization Review process is tooled and calibrated to the new chronic pain guidelines; that the UR physicians become very familiar with these new aspects, so they can respond correctly and properly to what will certainly be a host of new and expansive requests for authorization for the treatment for chronic pain.

I also expect more primary treating physicians to determine the existence of chronic pain and the intended referral to pain specialists, including outpatient pain management treatment facilities.

Stay aware.

Today, the California Supreme Court issued its decision in the Smith/Amar cases. Please recall these cases involved the issue of whether after a stipulated award for future medical care, if an employer applies utilization review and therefore raises the reasonableness issue of specific care, is that action the equivalent of a petition to terminate that care under Lab C 4607? (If so, the applicant attorney is entitled to attorney fees if they prevail). Please recall the facts of each case:

Smith v. WCAB (B190054): Smith suffered injuries to the right shoulder, neck and psyche on a cumulative trauma basis. He was awarded PD and future medical care. Eight years later, SCIF refused to agree to authorize epidural injections. After utilization review and after using an AME, who agreed Smith needed the injections, applicant’s attorney, William Herreras, filed a claim for hourly attorney fees. He asked for $1,485.00, contending that SCIF’s informal UR was the same as if they had petitioned the WCAB to terminate the medical award under Lab C 4607.

Amar v. WCAB (B199655): SCIF had stipulated to an award for future medical care, which included treatment for weight loss and non-industrial diabetes. Based on utilization review, and without petitioning to terminate the medical award, SCIF simply denied the treatment. The WCAB thereafter ordered the weight loss program reinstated.

SUPREME COURT HOLDS

• Lab C 4607 only authorizes attorney fees when a party institutes proceedings to terminate
• an award for future medical care and not simply when the party undertakes to conduct utilization review on a particular treatment request
• Lab C 4607 deals only with a party who is intending to terminate an award for future medical treatment, not disputing a specific or particular type of treatment
• This Court clarifies the distinction between determining whether a particular medical treatment is justified vs. efforts to attack the underlying validity of the entire medical treatment award.
• A defendant may dispute the specific need for treatment without that dispute being deemed a termination of the award and hence the liability for attorney fees under Lab C 4607.

IMPACT AND DISCUSSION:

The Supreme Court has otherwise affirmed that when a defendant refuses to provide medical treatment, even under an award, there is still a remedy–that being penalties AND ironically, attorney fees under Lab C 5814.5. Therefore, if the defendant has unreasonable delayed or refused treatment upon an award, the employer may still be liable for penalties and attorney fees, but only within this limited context and not within the broader scope of conducting utilization review.

Noting that in Smith and Amar, in neither case was the defendant attempting to end the medical award but merely contesting the need for a “particular” type of treatment under the award; this court makes the critical distinction between contesting the need for a particular type of treatment, which is within the scope of utilization review, vs. the very narrowly applied action to terminate all liability for the entire award for future medical care. Only under the latter effort, if unsuccessful, will applicant’s attorney be entitled to attorney fees, under Lab C 4607. Otherwise, the remedies left are utilization review and enforcement proceedings, which may include allegations of penalty and attorneys fees under Lab C 5814.5 but not Lab C 4607.

On Thursday, September 3, 2009, the WCAB issued its en banc decisions in the long-awaited cases of Almaraz/Guzman ALMARAZ/GUZMAN II: The WCAB has handed down a 51 page 4 to 3 “split decision,” with the majority of Commissioners essentially validating what they did back in February, but with some notable restraints, limiting modifications and even a couple of outright reversals. To make this decision more easily digestible, here are the key rulings of the majority and then to follow, I am giving you a “side by side” (I and II) so you can easily compare the extent and scope of these decisions:

• It is the permanent disability resulting from the 2005 PDRS which is rebuttable

• The 2005 PDRS incorporates all chapters of the Guides and not just the impairment determinations contained within some of the chapters

• All four “component elements” of the 2005 PDRS are rebuttable, including all of the AMA Guidesi

• Lab C 4660(c), providing the 2005 PDRS is “prima facie evidence of the percentage of permanent disability” means the PDRS is presumably correct; this is a rebuttable presumption, affecting the burden of proof. The party opposing the PDRS rating must therefore disprove the assumed fact by a preponderance of evidence.ii

• The prior standards in Almaraz/Guzman I, for rebutting the 2005 PDRS, by showing that the Guides based rating was unfair, inaccurate, inequitable or disproportionate, is rejected as being too subjective. Instead, the opposing party is required to overcome the presumption affecting the burden of proof by a preponderance of evidence.

• The new standard for rebuttal appears to be what is the “most accurate reflection” of the PD.

• Neither party may go outside or beyond the “four corners” of the AMA Guides in order to rebut the 2005 PDRS.

• All rebuttal evidence must therefore come from within the Guides. But the physician may use his or her clinical judgment in order to come up with a rating, which is based upon the unlimited use of any and all other chapters, tables and methods, so long as the opinion is deemed substantial evidence.

• It is suggested the rebuttal effort starts with a cross-examination of a physician, or the use of a supplemental medical report.

COMMENT: The three dissenting Commissioners are standing on their prior decisions and they unapologetically make no move whatsoever either towards mitigation or modification. They are resolute. While the majority opinion reflects a somewhat softer, more conciliatory tone, don’t be misled, since the “bottom line” is essentially the same. When the smoke from the verbiage clears, the overview from the top remains unchanged. By this further en banc decision, the parties cannot go outside of the Guides to rebut the 2005 PDRS rating. But who has seen anyone come up with anything outside the Guides to date? So, this part of the decision holds little substantive change.

The new standard of rebuttal provides some facially nice restatement of the required burden of proof, which rests with the applicant or the defendant to disprove the use of the rating from the 2005 PDRS. But I would argue that by removing the function of “inequity, disproportion, inaccuracy and fairness,” from their prior decision, they have probably made it easier and less complex for the

applicant to try and rebut the PD rating by having the physician “explain” why the “hybrid rating” from using the Guides other chapters and tables, is simply “more reflectively accurate.” Also, by keeping the whole rebuttal effort within the Guides, the WCAB has tried to reconcile the mandate to have “uniformity and consistency” with the continued use of the 2005 PDRS as “prima facie” evidence. Let the door now open to more Almaraz/Guzman challenges, without the rather complicated “rebuttal formula” found in Almaraz/Guzman I. We can now expect to see much more creative “chapter shopping,” including the use of “other chapters” in order to factor in the effect of ADL’s which actually impact work activities. Since the Guides do not consider work as an ADL, then the physician is seemingly now unencumbered to try and draw a work restriction (without calling it a work restriction). In other words, by considering the impact of ADL’s upon work, the physician can then state that the impairment is not accurate using a specific chapter –that another chapter combined with the impairment will be a better reflection of an accurate PD picture, given the impact of ADL’s and work function. In a subtle way, the majority has actually strengthened their earlier decision by extracting some of the subjectivity. By declaring that the Guides cannot be rebutted from extrinsic sources, this simply contains the mischief to the Guides, wherefrom the mischief never left anyway. Expect this winter season to be replete with “AMA Guides” training for the physicians and the expected use of impairment assessments, which ignore tables, shun the limits and combine chapters, otherwise intended to be separate.

i WPI, DFEC adjustment, age and occupational adjustment ii This is a presumption affecting the burden of proof –the stronger, public policy based presumption, requiring the opposing party to carry the burden of showing by a preponderance of evidence, that the party’s PD rating more accurately reflects the true PD. iii There are two types of presumptions; the first I would call the “light presumption,” which is a presumption affecting the burden of producing evidence. The party opposing the presumption simply presents rebuttable evidence and the presumption is rebutted. The second presumption [Ev Code 606] is the “promoting public policy” presumption, affecting the burden of proof. This is a much stronger presumption and therefore requires the opposing party not merely offer rebuttal evidence, but to essentially disprove the assumed fact. The party opposing this presumption therefore must disprove that presumption, rather than simply present opposing evidence. iv This includes generally accepted medical literature, other AMA publications, or publications of other organizations.