Dos & Don'ts: What the Judge Wants to See Part 5

Sunday, September 12, 2004 | 0

This is the fifth article in a series of six by San Diego Workers' Compensation Judge Susan England, reprinted here with permission from the California Society of Industrial Medicine (CSIMS). These articles were first presented as a single paper at the CSIMS conference held in San Diego, June 25-27, 2004. The first article reviewed the evidentiary status of medical reports in the workers' compensation system. The second article reviewed issues with treating reports. The third article began a review of problems with P&S reports, focusing on objective and subjective disability descriptions. The fourth article finished that discussion by reviewing work restrictions. Earlier articles can be accessed by clicking on the title in the right side bar.

The opinions stated in this article do not represent the stance of the Workers' Compensation Appeals Board, its administration or any other person except the author.

ACOEM and Utilization Review

The employers have been given time to submit their own utilization review plan for approval of the Administrative Director. Until that occurs, the Occupational Medicine Practice Guidelines, prepared by the American College of Occupational and Environmental Medicine, Second Edition, is to be used as a guide to proper medical treatment for industrial injuries in California. The guidelines provided by ACOEM or utilization review are presumed to be correct. However, that presumption is a rebuttable one. It must be rebutted by evidence that is specific to the issue, i.e. why the guidelines are inappropriate in the particular case at hand. The more explicit a report is in addressing this issue, the more chance it has in rebutting the presumption of correctness afforded to the guides. Similarly, once a carrier or employer has established a utilization review plan, the same thorough approach needs to be taken in any report prepared as rebuttal.

A new law and rating schedule is to take effect in January 2005. At that time we are supposed to have in place a system based on the AMA Guidelines. Just how those guidelines will translate into permanent disability percentages or dollars is not yet known. It does appear that some kind of wage loss formula will be in place. It is strongly suggested that all physicians practicing industrial medicine become familiar with the AMA Guidelines so that when the time comes to prepare reports in accordance with those guides, you have some awareness of your duties. Those physicians who have practiced under the Longshore & Harborworkers' Act are already familiar with some of those tenets and will be able to translate those skills into preparing reports for the state workers' compensation system.

Some draconian changes in our workers' compensation laws were passed by the Legislature and enrolled as law effective April 19, 2004. Many of the provisions of the law were given immediate effect, irrespective of the date of injury. Whether or not the retrospective application is found to be constitutional is a serious consideration at this time. However, the judges of the Workers' Compensation Appeals Board are supposed to apply the law as enacted. It is up to the appellate courts of the state of California, and perhaps the Federal Courts, to determine the constitutional issues.

Many of the changes apply to medical treatment and evaluations. For example the presumption of correctness of the treating physician no longer applies. Remember that the presumption affected the burden of proof. A person contesting the opinions of the treating physician (provided those opinions constituted substantial evidence) had to overcome the presumption with clear and convincing evidence. Doing away with the presumption creates a more even playing field. With a more neutral playing field, a physician's reputation becomes more significant.

Treatment concerns:

Employer provision of treatment during investigation period: The new law provides that within one working day of an employee filing a notice of claim of injury with his employer, the employer must authorize medical treatment and will continue to authorize treatment until such time as the liability for the claim is either accepted or rejected. This benefit has a $10,000.00 cap.

This provision should be of great benefits to physicians as well as injured workers. You can actually commence treatment and be paid for it prior to the claim being accepted. You do not have to be willing to treat on a lien basis anymore. But you must make sure that the claim for has been filed and that the claim has not yet been rejected. Remember that the ACOEM Guidelines and utilization review will apply to this early provision of medical treatment.

Utilization review/ACOEM Guidelines: Labor Code Section 4600 has been amended to provide that medical treatment to cure or relieve from the effects of the injury means treatment that is based upon guidelines to be adopted by the administrative director by January 1, 2005, and in the meantime by the updated American College of Occupational and Environmental Medicine's Occupational Medicine Practice Guidelines.

Medical Provider Networks: The employee can be treated by a physician or facility of his own choice thirty days after his report of an injury unless his employer or the employer's insurer has established a medical provider network.

Labor Code Section 4616 sets out the requirements of a medical provider network. The network must have at least 25% of the doctors engaged primarily in non-occupational injuries. There has to be enough physicians in the network to treat injuries in timely fashion. The network must have experience in treating the kind of injuries experienced by employees in the geographical area. The treatment must be available at reasonable times to all employees. Treatment shall be provided in accordance with the utilization schedule established by the administrative director or with the ACOEM Guidelines prior to the adoption of such a schedule.

If an employee questions the opinion of his network doctor, he must go to another network doctor for a further opinion. If that doctor agrees with the first, the employee must go to a third network doctor if he wishes to continue his contest. Only after the third such evaluation may he go outside the network for an independent medical review, however that review must be done by one of three panel physicians assigned his case by the administrative director. Once that doctor has evaluated him no further examinations can occur, even if the injured worker becomes represented.

Contesting the ACOEM Guidelines or ultimately the utilization schedule prepared by the administrative director, requires a physician to directly address why the guidelines should not be applied in this particular case. What makes this situation different from the norm? A mere disagreement is not enough. Remember the prior discussion of what constitutes substantial evidence. Apply those same principles to the preparation of your opinion concerning the guidelines. There is a presumption in favor of the guidelines.

Limitations on chiropractic visits, physical therapy visits and occupational therapy visits: Since January 1, 2004, there has been a limitation to 24 visits for chiropractic care and physical therapy. With the new legislation, effective April 19, 2004, that limitation has been extended to occupational therapy. This limitation applies over the life of the particular claim of injury.

The final article in this series will review permanent disability assessment by either a treater or evaluator.

Contributed by California Workers' Compensation Judge Susan England.

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