MTUS Changes Are Here

Monday, July 20, 2009 | 0

By Mullen & Filippi


Taking a cue from the midsummer heat, we explore in this edition of the Mullen & Filippi Bulletin some new regulations and recent cases which are likely to be hot topics for conversation in the coming days.

Changes to the Medical Treatment Utilization Schedule. Revisions to the Medical Treatment Utilization Schedule (MTUS) go into effect on July 18, 2009. The most significant changes have to do with the new definition and treatment guidelines for chronic pain, which are specifically intended to replace the previously used Chapter 6 of the ACOEM Practice Guidelines.

The regulations now establish a definition of the term chronic pain, and provide extensive guidelines for treatment of this condition, set out in a 127-page document titled Chronic Pain Medical Treatment Guidelines. The guidelines define chronic pain as pain "that persists beyond the anticipated time of healing." The guidelines explain that determining whether someone has chronic pain is a clinical decision based on persistence of pain when (1) the condition is not improving over time; (2) the condition fails to improve with treatments directed to the specific injured body part, or (3) in the absence of a specifically correctable anatomic lesion.

As observed in the guidelines, "Often it takes a number of months for the clinician to recognize when pain becomes chronic." Nonetheless, the guidelines encourage treating chronic pain as early as possible, stating that early treatment is more likely to result in successful recovery.

Perhaps the most useful part of the new guidelines is the extensive alphabetical list of pain treatments, most of which are medications, specifying when each treatment is, and is not, recommended.

While these guidelines are primarily for use by physicians who provide medical treatment and/or analysis of whether certain treatment is appropriate, they are also a useful tool for those of us who review medical reports in the analysis and administration of claims. While we do not expect these guidelines to eliminate all medical treatment disputes, we hope that they will succeed in ensuring that medical treatment provided is consistent, appropriate and predictable.

The MTUS, not including the Chronic Pain Medical Treatment Guidelines, is found in the California Code of Regulations, Title 8, sections 9792.20 through 9792.26. You can access downloadable copies of the MTUS and the Chronic Pain Medical Treatment Guidelines from the Department of Industrial Relations website, http://www.dir.ca.gov, by typing Chronic Pain Medical Treatment Guidelines into the search box at the upper right corner of the page. Warning: This is NOT light summer reading!


The Spirit of Section 4062. On July 7, 2009, the Third District Court of Appeal held, in the case J.C. Penney v. WCAB (Edwards), that a workers' compensation judge may deny a full credit for overpayment of temporary disability benefits based on "the spirit of section 4062." The case was ordered remanded for a determination of how much credit the defendant should receive. The decision was ordered published. On July 9, 2009, the applicant filed a Petition for Review to the Supreme Court, asserting that the Court of Appeal's opinion was not strict enough in that it allowed the possibility for defendant to receive some credit for overpayment of temporary disability.

The case involved an applicant who injured his right knee and low back, among other body parts, in July, 2003. He had knee surgery in February 2005. Authorization for back surgery was requested, but denied by utilization review in December, 2005. A second opinion doctor advised against the back surgery in February 2006. Nonetheless, the primary treating physician continued to find him totally temporarily disabled (TTD), and on May 24, 2006, issued a report finding him TTD through June 2006. Treatment reporting then stopped. The parties agreed on an AME, who found on Feb. 5, 2007 that applicant had become permanent and stationary six months after the right knee surgery. Defendant stopped paying TTD on March 14, 2007, presumably when the AME report was received. Defendant then sought credit for overpayment of TTD based on the AME report.

The judge denied credit for overpayment except for the brief period after the AME report was issued, finding that applicant's condition became permanent and stationary on the day of the AME exam. As partial justification for this decision, the judge stated that he could not tell from the record when the parties agreed to the AME, and "it is contrary to the spirit of [section] 4062 to permit a retrospective determination of a permanent and stationary date when there was substantial evidence to support ongoing temporary disability."

The WCAB adopted the judge's opinion on reconsideration. On appeal, although the court discussed what evidence would be needed to establish when applicant became permanent and stationary, the court found that the WCAB decision to deny the credit was not based on a finding that there was no overpayment of TTD. Rather, the decision was based on "the public policy manifest in section 4062" which requires an employer who objects to a medical determination to communicate that objection in writing within 20 days of receipt of the report. Finding that defendant failed to timely object to the treating physician's report within that time limit, the court concurred with the WCAB that it was contrary to "the spirit of section 4062" to allow the defendant to benefit from the AME's finding of an earlier permanent and stationary date.

The court also found, however, that section 4062 is only applicable to the extent that there are unchallenged medical opinions from the treating physician. Since the treating physician's opinions only found temporary disability through June, 2006, the court found that "the reach of the statute extends only that far." The court then remanded the case back to the WCAB for a determination of the amount of the credit to be awarded to defendant.

In his Petition for Review to the Supreme Court, applicant argues that the Court of Appeal was wrong to consider any credit because defendant lost the opportunity to object under Section 4062 by not objecting within 20 days of the treating physician's report, and since the next report was the AME report, no objection could have been made until that report was issued and hence there should be no credit.

The issue in this case is whether a defendant can receive credit for overpayment of temporary disability when it paid benefits in reliance on the treating physician's reports finding temporary disability which were later determined to be incorrect by the AME. The Court of Appeal decision may be interpreted as holding that a defendant cannot receive credit for overpayment of temporary disability for a period before it objected to a medical report, even when the medical evidence establishes that the applicant's actual permanent and stationary date was earlier. In the opinion, the court explicitly encourages defendants to object at the earliest opportunity. Where the treating physician stops reporting, the Court of Appeal at least seems to acknowledge that the obligation to object also ends — recognizing, we hope, that one cannot object to a report that does not exist. Applicant in his Petition for Review disagrees with this part of the decision. Nonetheless, we can envision that, in the interest of preserving their right to claim overpayment credit, defendants will begin objecting to treatment reports very early in the course of treatment, sometimes too early, resulting in multiple rounds of medical legal evaluations. While the court's objective seems to have been to encourage quick resolution of claims, we fear that the actual result of this decision may be increased litigation, with concomitant costs.


Defining an Occurrence. On June 22, 2009, the Second District Court of Appeal ordered publication of its decision in the case Supervalu v. Wexford Underwriting Managers. The case defined the meaning of the term "occurrence" in an excess workers' compensation insurance policy.

At issue in the case was a dispute between an employer with a large self-insured retention and its excess insurance carriers over what counted as an "occurrence" for purposes of calculating the amount of the self-insured retention. Based on long practice, the employer claimed that "occurrence" meant the resolution of a claim, regardless of whether that claim involved one injury date or multiple injury dates. The insurers argued that each individual injury was a separate "occurrence." Relying on the policy language, the court held that "occurrence" means an event. Accordingly, each injury date counted as a separate occurrence.

Although the court's decision in this case did not mention the recent Benson decision, we cannot help but notice that it is markedly consistent with that decision, in which the court held that permanent disability is calculated separately for each date of injury. We are aware that there has already been some discussion in workers' compensation circles about the similarity between the two opinions. Although somewhat tangential, this case seems to reinforce that the Wilkinson doctrine is no more.


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The Mullen & Filippi Bulletin is reprinted with the permission of the law firm from its website, www.mulfil.com
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