New PTP Following P&S Status Requires Carrier Diligence

Sunday, March 28, 2004 | 0

Management of future medical issues is always a difficult situation for the carrier, especially if the injured worker changes Primary Treating Physicians (PTP) along the way, and in particular after the first PTP makes a declaration that the injured worker is permanent and stationary. Several factors come into play relative to the carrier's rights and duties, and affect claim management strategy.

Prior to June of 2003, case law governed the rights of the parties, and in particular Tenet/Centinela Hosp. Med. Ctr. v. Rushing 80 C.A.4th 1041, 65 CCC 477 (2000) and Gaytan vs. WCAB 109 Cal.App.4th 200 (2003). The Court in Tenet said that following the permanent and stationary status of the injured worker the procedures in LC 4061 and 4062 must be followed before the injured worker could seek additional medical treatment with a new PTP. The Gaytan court said that a Qualified Medical Examiner may become the new PTP after the injured worker is permanent and stationary, but only after the procedures in Regulation 9785 have been followed.

On 6/17/03, Regulation section 9785 was amended to clarify the Division's intent, and specifically provides that the injured worker may select a new PTP "to render future medical treatment either prior to or at the time such treatment becomes necessary" if the original PTP had indicated that future care was warranted.

Consequently, the injured worker need not object to the PTP determination to change physicians and continue with care. The burden is on the carrier to raise objection per 4061 or 4062.

Subsection (b)(4) of Regulation 9785 provides:

"If the claims administrator disputes a medical determination made by the primary treating physician, the dispute shall be resolved under the applicable procedures set forth at Labor Code sections 4061 and 4062. During the course of such procedures, and provided the primary treating physician has determined that there is a need for continuing or future treatment, the employee may designate a new primary treating physician of his or her choice pursuant to Labor Code sections 4600 or 4600.3 to render treatment."

The next part of the equation is whether the carrier must pick up temporary disability indemnity benefits while the dispute resolution process is underway. Care must be taken when evaluating this part of the equation. There needs to be medical evidence sufficient to rebut the new PTP's determination of TTD status. While this may be the original PTP's declaration of P&S status, evaluate the sufficiency of that evidence and ensure that all of the minimal requirements of admissibility are included in the report as well as whether the conclusion by the original PTP is medically supported. The risk in not picking up temporary disability indemnity following the new PTP's declaration of TTD status is a penalty later on, so particular care must be used in evaluating this risk.

Use of standard medical treatment management resources, such as utilization review and treatment guidelines should help in controlling some of the medical aspects of the case with the new PTP while the dispute resolution process plays out.

When the injured worker changes PTPs following P&S status, time is of the essence. Your tools are the medical issue dispute resolution processes contained in the Labor Code.

-------------------

The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.