The Letter of The Law & Reporting Responsibilities

Sunday, February 13, 2005 | 0

This is an excerpt of a 9-page article addressing Changes Affecting The Evaluation, Adjustment & Indemnity of Permanent Disability by Luis Perez-Cordero, MA, AAPMR & Craig Andrew Lange at www.pdratings.com. Introduction:

Attending CAAA's Conventions is always an exciting proposition. You never know what to expect! When it comes to the medical reporting and description of Permanent Disability, I must agree with CAAA's motto of "comply with the literal letter of the law." The proper evaluation, preparation and compliance with the literal letter of the law as defined by case law, the Labor Code and California Codes of Regulations, is something every medical evaluator (PTP, QME, IME or AME) should strive-for. AMA Guides states it best: Clinical findings must be fully described so any knowledgeable observer can check the findings with the Guides criteria. Let us take all P&S medical reports to this higher ground, as recommended by applicant attorneys.

AMA, California Code of Regulations, and LCS section 139.2, state that in order to produce a complete evaluation, the physician must support findings and opinions by measurable elements based on standardized examinations and testing techniques generally accepted by the medical community. Physicians must describe the purpose of the clinical tests since the main function of the medical report is to enable people who are not physicians to assess the case. The complete findings of performed or reviewed diagnostic tests must be included within the medical report. All conclusions shall be based on the facts, on the physician's training and specialty-based knowledge and shall be without bias either for or against the injured employee or the employer.

LC section 4061.5 states that the primary treating physician (PTP) shall render opinions on all medical issues necessary to determine eligibility for compensation. Determination of Medical Issues and additional criteria is addressed under LC section 4060-4062 - responsibilities of physician signing the P&S medical report are addressed under LC section 4628. Items required by LC 4628 must be included or report is inadmissible and there is no liability for payment.

Two articles expand on this subject: Basic Elements in Medical/Legal Evaluation Reports written by the Honorable WCAB Judge Suzanne P. Marria, and The Medical Opinion As Evidence: The Judge's Perspective written by the Honorable WCAB Judges Susan Hamilton, William J. Ordas, and Nikki S. Udkovich.

Measuring & Describing Disability After 01-01-2005

The Schedule was not the only regulation dealing with Permanent Disability that went into effect on 01-01-2005. To abide to LC section 4660 (b)(1), alongside with the new Schedule's implementation, the old evaluation regulations for describing measurable factors of disability (9725-Packard Thurber), subjective factors (9727) and psychiatric disability work functions (9726) were ended as of 12-31-2004. Any physician that prepares the new PDR-4 and/or a comprehensive or medical-legal Permanent & Stationary (P&S) Report must comply with LC section 4660 (b)(1) and the California Codes of Regulation Guidelines for the measuring and description of both impairment and disability found at http://www.dir.ca.gov/dwc/dwcpropregs/8-CCR-9725-et-seq(12-04).PDF.

If a ratable P&S report was not prepared as of 12-31-2004, the physician has to use the new AMA evaluation protocols to both measure and describe impairment, since the old regulations are no longer applicable or are a part of the Labor Code and California Code of Regulations. Regardless of what correspondence you received to lock' the use of any prior rating, there are strong grounds for objecting to a medical report PDR-3 or PDR-4 describing Permanent Disability with the use of abolished regulations.

The 5th Edition of the AMA Guides defines the standard methods the evaluator must follow to measure the objective manifestations of impairment when considering both anatomic and functional loss. The AMA Guides also states that other approaches, when published in scientific- peer-reviewed literature, will be evaluated and considered for future editions of the AMA Guides. The evaluating physician follows protocols & Evaluating (Rating) Criteria from AMA Chapters 1 & 2 and the Impairment Chapter(s) for the body parts being evaluated.

When applicable and when listing medical findings, Physician uses AMA reporting forms or incorporates their information within the comprehensive P&S report. The AMA Guides are very clear in stating that full and complete reporting is required. Thorough documentation of medical findings at the onset provides claim administrators with the information needed to quickly provide entitled benefits. As stated in the introduction of Chapter 2: Two physicians following the rating methods of the Guides 5th Edition to evaluate the same patient should report similar results and reach similar conclusions.

LC section 3209 defines the licensed health professionals [physicians] allowed to determine disability under the Workers Compensation System. These professionals are permitted to treat or determine residual disability within the scope of their licensed practice as defined by California Law. Physician" includes physicians and surgeons holding an MD or DO degree, psychologists, acupuncturists, optometrists, dentists, podiatrists and chiropractic practitioners licensed by The State of California and within the scope of their practice as defined by California Law. A P&S report prepared by a physician's assistant is not valid under California Law.

The evaluating physician must address the occupational factors that played a significant role in producing the disability, which the physician has described. Apportionment involves a segregation of the disability attributable to the industrial injury from that, which is due to other factors. The evaluating physician must give a reasoned, well-supported opinion authenticating the level of disability that is due to both vocational and avocational factors.

Physician must consider avocational factors, findings and symptomatology independent of the permanent disability due to vocational causation. Evaluator must provide a well-reasoned opinion based on the review of the medical records/history that considers pre-existing objective pathology, symptomatology, work limitations secondary to pre-existing disability, including time off from work or need for treatment. Avocational considerations include a quantified account of relevant personal habits that may be relevant in either contributing to the initial symptoms or continue hindering their resolution. . SB 899 - L.C.S. section 4663 & L.C.S. section 4664:

At WorkCompCentral, you can find two articles that summarize the binding themes of the CAAA's Winter Convention in San Diego. New PDRS Will Increase Litigation Ten Fold [01/28/05] & 2005 CAAA: No Surrender, No Retreat - 01/31/05. To quote Margo Channing in All About Eve, Fasten your seatbelts. It's going to be a bumpy ride.

Concluding Remarks

Teaching a class in the new schedule, in multiple cities in Central and Northern California, has made me realize how well designed it is. Unlike prior schedules, the 2005 schedule is less likely to be open to artful or unfair manipulation to serve the interpreter's purposes. The new schedule helps promote consistency, uniformity and objectivity in the rating process. I recommend the PDRS Calculator at Work Comp Central: http://www.workcompcentral.com/wcc/pd_rating.htm.

Article by Luis Perez-Cordero, MA, AAPMR. Luis can be reached at pdrating@pacbell.net.

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