Not a Lexis+ subscriber? Try it out for free.
LexisNexis® CLE On-Demand features premium content from partners like American Law Institute Continuing Legal Education and Pozner & Dodd. Choose from a broad listing of topics suited for law firms, corporate legal departments, and government entities. Individual courses and subscriptions available.
By Corey Ingber, Partner, Landegger, Baron, Lavenant and Ingber
Think about all of the new features, rules, regulations, changes and laws added to the workers’ compensation mixture since the advent of our reforms. If we go back a number of years, a medical-legal report was usually no more than a few pages in length, it didn’t need to come from a QME, it didn’t have to be filed at the WCAB until the “last moment” and it was usually featuring mostly simply written narrative descriptions of how the injury took place, followed by a basic examination and then findings, which most Claims Examiners could easily comprehend. We didn’t often see fibromyalgia, CRIPS I and II, sleep disorders, irritable bowel syndrome, GERD, sexual dysfunction, incontinence, while blood cell disease and a host of other modernistic medical inventions. We also didn’t have:
o Claim Form and service
o When the 90 days run/
o 90th days to deny
o Automatic entitlement to medical treatment during investigation
o What is a rejection?
o Effect of presumption of injury?
o Barring use of evidence discovered during the 1st 90 days
o Who is the PTP?
o Expanded role of PTP
o Expanded reporting duties - 9785
o Self-imposed penalties
o Medical Provider Networks
o MPN rules governing transfer of care and continuity of care
o MPN rules governing notice (3550 poster, new hire notice, notice post injury)
o Independent Medical Review Process (IMR)
o Elimination of right to request order to change in treating physician
o Evidence based medicine
o In home care
o Liens for spouse and “significant other” for housekeeping work
o ACOEM treatment guidelines and the Medical Treatment Utilization Schedule
o Hard Caps on physical therapy
o Utilization Review and time frames
o Second Surgical Opinion Rules and time frames (Cervantes)
o Nociceptive vs. neuropathic pain
o Chronic Pain Guidelines (127 pages)
o The ODG
o The biosychosocial model of pain management
o Oxycontin and chronic pain
o Spinal cord stimulators
o E -stimulators:(TENS, percutaneous)
o Duragesic patches
o Topical Ointments
o “Drug Cocktails” for chronic pain management
o Work conditioning
o Work hardening
o Implantable drug-delivery systems (IDDSs)
o Multi-disciplinary pain management programs
o Inter-disciplinary pain management programs
o Cognitive behavioral therapy
o Discograms
o IDET
o Epidurals
o Ergonomics
o Functional restoration
o Co morbidities
o PQME’s: bar on ex parte communications with
o Restrictions on getting a 4060 exam
o Rules on what can be sent to a QME (non medical information) and time frames
o Restrictions on when or if we could get a defense evaluation
o Time frames for objecting to the PTP and getting a PQME for causation
o Same for PD and treatment issues (4061.1 and 4062.)
o Medical Treatment Fee Schedule
o In patient Hospital Fee Schedule
o Outpatient Hospital Fee Schedule
o Pharmaceutical Fee Schedule (Red Book)
o Penalties for late payment of treatment
o Sleep Laboratories –sleep studies
o Epworth Sleep Scale
o WCAB Audit rules (PARS)
o Schedule of penalties: 5814.6
o $100,000 general business practice penalty
o Medicare Set Aside issues
o Labor Code 4628(j) disclosures
o Supplemental Job Displacement Benefit
o 15% bump up/down for PD (4658(d)
o EAMS and Cover Sheets
o Pre trial conference statements
o Discovery closure at MSC
o Priority Conferences
o 2005 PDRS
o Impairment vs. work restrictions
o ADL’s
o The AMA Guides 5th and impairment
o DRE v. ROM
o Goniometry
o Inclinometers
o Impairment of lower extremities; 13 ways to asses in the Guides
o Combined Values Table vs. MDT
o The GAF for psychiatric claims
o Multiple PD rates for dates of injury
o TD caps
o Advancing PD (no gap)
o Post termination rules physical
o Post termination rules psychiatric
o Good faith personnel issues and the Rolda standard of proof
o Apportionment to Causation: 4663
o Report is incomplete if apportionment to causation not addressed
o Escobedo
o Benson
o Apportionment to prior award: 4664
o What if prior award was under the 1997 PDRS?
o Almaraz/Guzman
o Ogilvie
o Rehabilitation is eliminated
o Is it resurrected with Voc Rehab Experts and Le Boeuf?
o Enhanced death benefit to minor dependent
o COLA’s and when to apply them
o Compromise and Release form No. DWC –CA Form 10214(d)
o Future medical care -Tenet
o Social Security Releases
o Serving evidence upon lien claimants
o Body Part Codes
o Cover Sheets
o Document Separators
o E filing
o “ Uniform Walk Thru” Rules
o Benefit Print Outs
o Venue rules
o Furlough days
o Court Commissioner Rules
o 5710 fees at $350.00 an hour?
o CIGA
o Public Safety Officer and Fire Fighter presumptions
o Sanctions
More than ever, reading and understanding a medical report is critical but it can be daunting at times. But, if you take a very measured approach, you will find that in many instances the errors and problems will seem to “jump out” at you. It is essential that you apply some critical thinking to these reports and you will be surprised at what can come from the effort.
1.1 MEDICAL REPORTS IN WCAB PROCEEDINGS
· The WCAB expressly favors the production of medical evidence in the form of written medical reports
· Live medical testimony at trial is strongly disfavored and is therefore rare. It can be brought but only upon a party first making an application and then showing good cause[ii]
· The filing of a medical report with the WCAB does not make it admissible. The medical report is not received in evidence simply because it is filed[iii]
· As a result of the SB 899 reforms, for injuries on or after 1/1/05, the parties are no longer permitted to simply go out and obtain a medical-legal opinion from a physician under Labor Code Sections 4060, 4061 or 4062. Instead, the parties are expressly limited to obtaining medical-legal opinion and evidence either from a PQME (APQME) or AME. All other medical opinions are specifically limited either to a Primary Treating Physician or Treating Physician[iv]
· Most reports from treating physicians are going to get into evidence
· The WCAB will generally permit medical reports to come in to evidence but may accord them less weight or even no weight at all
· The reforms have restricted introduction of medical-legal evidence.
· Failure to make proper disclosures under Lab C 4628 may render the entire report inadmissible
· A medical report must be substantial evidence or it should not be relied upon
· Substantial evidence is based upon reasonable medical probability[v]
· A medical opinion is not substantial evidence if it is based upon facts no longer germane, on inadequate medical histories or examinations, on incorrect legal theories, or on surmise, speculation, conjecture or guess[vi]
· A medical report is not substantial medical evidence unless it sets forth the reasoning behind the physician’s opinion, and not merely his or her conclusions[vii]
· “The chief value of an expert’s testimony rests upon the material from which his or her opinion is fashioned and the reasoning by which he or she progresses from the material from which his or her opinion is fashioned and the reasoning by which he or she progresses from the material to the conclusion, and does not lie in the mere expression of the conclusion; thus the opinion of an expert is no better than the reasons upon which it is based”[viii]
1.2 ELEMENTS OF A MEDICAL REPORT
A medical report is no better than what went into it. Many medical reports look important, even imposing, but when you start to look at them, they have a distinctly familiar pattern, since many physicians learn how to write these reports at seminars and teaching sessions, where savvy instructors show them how to insert the “magic phrases” and “terms of art” which are essential to getting through the system. So, don’t be easily dismayed if a medical report is lengthy or written in complex detail. Often, these are still products of “mass production.”
Here are the essential ingredients of what goes into a medical report:
Essential Element
Reference
History of Injury
ADR Rule 10606
Date of injury
What happened
Mechanics of injury
Parts of Body
Onset of symptoms
Treatment
Disability
List of Complaints
The Information Provided by the Parties and Records Summary
These are the reporting symptoms or the so-called “subjective complaints” and bodily and other complaints at the time of examination. A good history will detail the onset of those complaints and their duration and frequency prior to examination
Medical History
Doctor must provide a complete medical history, including any and all prior injuries, illness or treatment to any body parts or systems in the present case.
Findings Upon Examination
What are the medical findings?
This means what are the objective findings. These could include:
e.g.
Diagnosis
ICD-9. What is the medical diagnosis?
Opinion on Disability
Cause of the Disability
· Diagnosis related to industrial injury
· Diagnosis consistent with mechanics of injury
· Other concurrent causes
· Idiopathic
· Aggravation
· Exacerbations
Medical Treatment
What medical treatment is being prescribed? The rules require the primary treating physician (PTP) to prepare a “treatment plan” so that the employer has something to evaluate.
What is the treatment plan?
If the report is coming from the PTP, then he or she must set forth a treatment plan which features: (see 9785)
· Methods
· Frequency
· Duration of planned treatment
· Consultations needed
· Referrals
· Surgery
· Hospitalization
· Identification of each physician and non-physician provider
· Specify frequency duration of physical medicine services use of CPT codes is encouraged
· Significant changes in treatment plan
· Return to regular or modified work
· Release from care
· P and S status
· Progress reports required every 45 days
· PTP’s need to use PR-2 and PR-3’s or the narrative equivalent[x]
ACOEM Guides and Labor Code 5307.27
Permanent and Stationary Status
If the applicant is not permanent and stationary is the application TD.
How long?
Apportionment to Causation
See below
Signature and Disclosure
4628(j)
1.3 REPORT EVALUATION CHECK LIST
COREY’S “FACC” STANDARD
And for P and S Reports:
Check out Apportionment FIRST……!!!!!
Okay. It’s late and you have a lot of things starting to pile up, including 50 more e mails since noon and a lot of mail and other information coming in. So, you get a 45 page medical report declaring the applicant permanent and stationary. What is your first move?
Go right for the apportionment section. That’s right, start from near the end. Read the apportionment discussion first and read it carefully. If the doctor has not addressed apportionment to causation as required, then that report fails, at least as to permanent disability, since it is now legally insufficient and therefore “incomplete.” In other words, you now have an opportunity to ‘short circuit’ the key, critical portion of this report right now. You need to make a note of this, since this will be a major defense issue when it comes time to either settling the case or getting the case to hearing.
After you have considered apportionment in a permanent and stationary report, or for any other type of report (Initial, progress, supplemental, interim, etc.) then use the following tool:
Actually, let’s try the tool with a hypothetical injury so that we can see how the tool works against the reading of a medical report.
The FACC Tool
A medical report which is premised on a false history, inaccurate or wrong facts, which is not complete, including a failure to review or consider relevant medical records, or which is based upon insupportable or unexplained naked conclusions is not substantial evidence. That report might get into evidence, but it should have no evidentiary weight.
You don’t need all four components in order to conclude that a medical report should not be considered substantial evidence but the more you have the better. In terms of relative weight of these four factors, an outright falsity (F) is probably the most compelling. That might be an outright denial of a prior workers’ compensation claim and you find out there are no less than 10 of them, 2 of which are still pending. Well, here the “F” is for the falsity and if those claims are even remotely relevant, then the report should easily fail right there
Next, I like accuracy. An inaccurate medial history, an inaccurate diagnosis, ignoring things and having internal inconsistencies within the report can be potentially compelling stuff before the WCAB. A doctor fails to take measurements and this goes to accuracy. The doctor gets an MRI showing no more than a 2 mm bulge at L4-L5 and no impingement and declares the applicant has a herniated disc.
Completeness is kind of like accuracy but here the doctor didn’t do the job right. For example, there is a finding of Carpal Tunnel Syndrome without an NCV to test for problems with the medial nerve. Here, the doctor didn’t complete his diagnostic determination for CTS but what he may have so far is technically accurate.
Conclusions are also very compelling but most Judges won’t hang a big hat on this so we shouldn’t either but it is important since it goes to the sufficiency of what the doctor did.
Okay, here are the tools and let’s apply them to a hypothetical.
F - False
A - Accurate
C - Complete
C - Conclusions
Mary Stone is a Warehouse Worker, who on 8/10/09, slipped and fell while in the warehouse. The incident was witnessed by a co-worker, who actually helped her to her feet. She stated she was not hurt and continued working. She did not seek medical care but twice it was offered and each time she declined. She continued to work for two months. On 11/10/09, she was laid off. At the time she was laid off, she did not mention either that she had been hurt of that she was in need of any medical treatment.
HISTORY OF INJURY
Facts: Mary Stone, age 39, slips and falls in a warehouse while working for Value Giant Stores. She does not strike her head and has no loss of consciousness. Her co-worker, Joe View witnesses the injury as he is standing nearby. Mary did not strike her head. In fact, she is laughing and he helps her to her feet. She tells both Joe and the warehouse foreman she is “fine.” She is offered medical care on two occasions but declines, claiming she is not hurt. She keeps working for 2 months with no time lost and no medical care. Three months later, she is laid off, at which time she did not disclose that she had been hurt at work or that she had any residual symptoms.
Dr Pain: “On 8/12/10 Mary Stone, a warehouse worker, slipped and fell in the warehouse sustaining injury to her neck and back. She reported the incident but was not provided medical care.” She continued working but in pain. The pain became more intense and she was no longer able to perform her work. She then stopped working.
Facts: Mary did not strike her head
Dr. Pain: Mary Stone struck her head on a pallet jack and now has continuing headaches in the back of her head.
_______FALSE
The part of the head striking the pallet jack is false.
______ACCURATE
Is this history accurate?
No.
She reported that she was not hurt so that her contention made to Dr. Pain that she was hurt is inaccurate.
______ COMPLETE
Is the history by Dr. Pain complete?
No. With respect to reporting the incident what she reported is that she was not hurt. She declined medical care, which is far different from not being “provided” medical care, which while technically true is not a complete factual disclosure of what occurred. She didn’t disclose that she had been laid off. Instead she leads Dr. Pain to believe that the only reason she stopped working is that she was in further and greater pain.
_______CONCLUSIONS ALONE
IF Dr. Pain reported, “Mary Stone was hurt at work when she fell in the warehouse...” This is a conclusion without any lacking in factual detail, including the very mechanics of injury. You often see this practice in psychiatric evaluations, where the evaluator states, “Mary Stone was subjected to harassment and mistreatment at work.”
COMPLAINTS
Dr. Pain: Mary reports she has daily headaches in the back of her head. She has constant neck pain, which radiates to her right arm. The pain is burning. She has lower back pain, which is constant. The pain moves down to her right thigh. The pain is described at L5-S1.[xi] She has numbness and tingling in her right foot. She is complaining of dizziness and nausea. She has anxiety attacks each day while re-living the incident. She is nervous, anxious and depressed.
Facts: After her layoff, Mary had a regular annual physical examination with Dr. Stretch. The examination occurred on 11/2/10. At that time, Mary said she was said because she was not working. But she had an otherwise completely normal physical examination.
F - We don’t have evidence right now that these are false complaints, since we have not taken her statement nor have we deposed her or obtained medical records. Yet.
A – Not enough information
C - The complaints are not complete to the extent that she did not disclose that she did not hit her head.
C - The statement that she is nervous, anxious and depressed is a conclusion since there is no linkage either to work or the actual injury. There is also no description as to when the complaints to each part of the body actually started. It is assumed they all began at the same time.
INFORMATION RECEIVED FROM PARTIES
Dr. Pain: I have reviewed information provided by the applicant. This information supports the history of injury.
Facts: Applicant’s attorney, Gary Chaser sends Dr. Pain a cover letter, a claim form, a copy of the application of adjudication of claim, together with a cover letter outlining the facts.
F - No. Dr. Pain did receive information. He did not describe it as “medical records” which would have been false.
A -- No. Dr. Pain creates the impression that he has been provided medical information, which he has not.
C - No. He made no disclosure that not a single medical record has been reviewed.
C – Yes. This is a naked conclusion unsupported by anything. This is a so called “canned paragraph.”
MEDICAL HISTORY
Dr. Pain: Mary Stone has no history either of prior injuries or treatment to the affected body parts. She denies any prior workers’ compensation claims. She denies any automobile accidents.
Facts: The ISO reports a prior personal injury claim against State Flux Insurance for a MVA on 4/1/2006. Defendant obtains these records and they show that Mary slipped and fell at a store and filed a claim for personal injuries. She saw a chiropractor, who described injuries to her upper back and right shoulder. She received 200 treatments and a final discharge was stated her condition was still “guarded.”
F - Likely though her attorney would argue that the “affected” body parts are different and that she fell at a store.
A - No. She failed to disclose that she had a prior back injury.
C - No. This history is not complete. Dr. Pain either did not ask about “other” types of claims besides automobile accidents. A “slip and fall” should have been part of his history. Also, the denial of a prior workers’ compensation claim is not complete, if the denial omits disclosure of the slip-and-fall injury claim.
C - This would be an acceptable conclusion if the facts were true, which they are not.
FINDINGS ON EXAMINATION
Dr. Pain: I have examined her back and she reports pain and limitation of motion. She says she cannot touch her fingers to the floor. Straight leg rising is negative to 90 degrees bilaterally. She has +5 motor strength in lower extremities. She has no sensory grade deficit. Babinski’s is normal. (Great toe is flexed –if it extends instead of flexes and the other toes spread out, test is positive and might indicate upper motor involvement). Lasegue’s test is normal (flexion of affected limb’s hip is not painful, but extension of the knee while hip is flexed is painful. Pain would indicate sciatica) There is 2 inch thigh atrophy on the left and 1 inch calf atrophy at the ankle. She has pain upon all back motions. She reports stiffness and pain in her neck. She has full range of motion in her neck.
F – Not here. Not yet at least.
A – No. First of all, note under complaints, Mary stated she had back pain to her right lower extremity. But here, she has no sensory deficits in either extremity. So, this examination is not accurate. Also, how is the LEFT sided atrophy relevant to this examination. In fact, it is opposite and therefore contradictory. Dr. Pain does not even comment that the atrophy is on the wrong side. How does this explain atrophy on the left when the pain generator is going down the other leg?
C – Of course not. The examination is NOT COMPLETE because:
(1) No back measurements are taken with an inclinometer. No warm ups. No there tries.
(2) No examination is really conducted to the neck. It is all about history He doesn’t check her shoulders, her upper extremities or perform any upper extremity examination.
(3) You see how he doesn’t even examine her head. NO neurological examination takes place here. (Cranial nerves, etc)
C - Not applicable here
DIAGNOSIS
Dr. Pain: Herniated Disc at L4-L5; Neck strain resolved. Anxiety reaction. Post concussion head syndrome.
F - The facts don’t support this but is it really false. We don’t know.
A - No. First of all, the atrophy was on the left not the right. And, the radicular complains were not only not verified on any level of dermatomal distribution but even if we believe the radicular complaints were true, the diagnosis is not supported either by the history or the examination findings. Why? Because, all of the neurological tests are entirely normal, the atrophy is on the left, not the right, the complaints of radiating pain are on the right, where there is no sensory or motor deficit. Also, the diagnosis is not supported by any MRI study. Clinical examination findings neither correlate with nor support diagnosis.
C - Complete. No way. He doesn’t even take measurements; no x rays; there is explanation for radicular symptoms present in the wrong extremity. No effort made to explain. All findings are actually normal and this looks suspicious but Dr.Pain is oblivious.
C - Yes. There is no basis upon which to support the conclusion that there is a herniated disc. This is not even borne out by her reported symptoms. Also, not a single exam finding is positive for radiculopathy. No imaging studies or anything else supports this. There is also nothing which supports the conclusion that the applicant strained her neck.
OPINION ON DISABILITY
Dr. Pain: Mary Stone is temporarily totally disabled. She will be disabled for 6 months.
F - No enough to know
A - What are all of her problems? The headaches are not even discussed, so are they also work related? What about the psychiatric symptoms, which are not even addressed?
C - No. Here, there is an obvious problem, since the doctor has not correlated his ICD-9 Code diagnosis to the treatment guidelines from the Lab 5307.27 and the Medical Treatment Utilization Schedule which incorporates ACOEM. The report does not state why she is TTD. Is it because of the back, head, psyche or all? The treatment plan is vague.
C - The six months is not supported by any facts. It is also based upon the assumption that she has a herniated disc. But, here the report finds her TTD for 6 months but there is no treatment plan here.
CAUSE OF THE DISABILITY
Dr. Pain: Her disability and need for treatment are 100% work related.
F - insufficient information here
A - No. Even if we accept his findings, he does not even cover the head or the psychiatric issues, which alone render this report incomplete. He never links the head injury to anything that occurred at work other than she struck her head. He took no other history as to when the headaches began or even where the headaches are relevant to the complained mechanics of injury. He does not diagnose a head injury so what disability here?
TREATMENT INDICATED
Dr. Pain. Mary needs physical therapy to the affected parts of the body. I am prescribing 40 treatments for the back in 3 modalities. She also needs a TENS unit and I am prescribing 40 mg of Norco, to be taken daily for pain. She will also need a neck brace, and she is being given Ambien to restore her sleep patterns. I am also prescribing Xanax at .25 mg to be taken as needed for anxiety attacks. Mary’s condition is expected to improve with the treatment I have recommended. She will be monitored and re-examined every 30 days, while she undergoes care.
F - The neck brace here is the problem. The doctor found nothing wrong with her neck, which he didn’t even bother to actually examine and he states she has no pain. So the neck brace is the big problem here.
A - No. The treatment plan is not ACOEM compliant. There treatments are beyond the caps. The TENS unit is not consistent with anything. Using an opiate (Norco is hydrocodone with Tylenol) is a Class II Narcotic. The level of pain does not justify this.
C - Why is the doctor prescribing Xanax, when he has made to psychiatric diagnosis and there is no linkage to the claimed industrial injury other than by conclusion? Dr. Pain fails to state the basis upon which he is giving Mary
C - The sleep medication has no connection to this claim. There is no history that the applicant has any sleep problems; that sleep problems were caused by the pain or any other incident either of the employment or the instant claimed injury.
PERMANENT AND STATIONARY STATUS
Dr. Pain: The patient is not yet permanent and stationary, consistent with the above discussion.
F - No.
A - This is okay
C - Okay
C - Okay because the doctor explained that the applicant needed treatment and that her condition had not yet stabilized and it would be monitored.
APPORTIONMENT TO CAUSATION
DR. Pain: Even though her condition has not yet stabilized, I find that 100% of her anticipated permanent disability is entirely work related. She denies any prior workers’ compensation claims or motor vehicle accidents. She reports she has never had pain in her lower back or in her head. I therefore find no basis to apportionment to any previous disability or condition.
You decide:
F –
A –
C –
C --
REASONS FOR THE OPINION
You decide
C -
1.4 APPORTIONMENT TO CAUSATION
It has been no less than six and one-half years since SB 899 and guess what? A lot of doctors still don’t understand apportionment to causation or if they do understand, they find it easier and perhaps faster to simply dismiss apportionment by concluding that in the absence of a prior or subsequent disability, there is simply no apportionment under Labor Code Section 4663. Of course we know this is not the correct approach but many physicians appear to be deploying pre-899 methods.
Apportionment is bound in the assessment of permanent disability so if the doctor fails to address apportionment to causation then the report is considered legally incomplete
Lab C 4663
· It seems that many MMI reports seem to fail to properly address apportionment to causation. Instead of following SB 899’s Labor Code 4663 and Escobedo, the typical evaluation contains either a blanket ‘rule out’ of apportionment or a specific finding of no apportionment upon the basis that there was no prior disability or labor impairing symptom. This is the “old thinking’ which continues to find its way into medical reports.
· These reporting physicians are still “thinking” about apportionment in the manner in which they were trained or by the way in which they practiced pre-SB 899.
· Many of these physicians think that the only prior basis upon which to determine apportionment under Labor Code 4663 is if the medical record includes one or more of the following:
· All of these remain valid “factors of apportionment” under Escobedo.[xiii] But under this En Banc decision, “other factors” now include:
In any letter to a physician, whether he or she is a PTP, Sub treating physician, PQME, AQME or AME, the following questions need to ask:
1. Set forth each and every factor whether prior or subsequent to the industrial injury, that has caused any permanent disability, including prior or subsequent injuries.
2. What approximate percentage of the permanent disability is the direct result of or directly caused by the injury arising out of and occurring in the course of the employment.
3. What approximate percentage of the permanent disability is caused by factors, whether prior or subsequent to the industrial injury as set forth in paragraph (1) above.
A medical report which does not properly address apportionment to causation is not complete and is therefore not substantial evidence of permanent disability. Lab C 4663: “(c) In order for a physician’s report to be considered complete on the issue of permanent disability, the report must include an apportionment determination. A physician shall make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of an occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries. If the physician is unable to include an apportionment determination in his or her report, the physician shall state the specific reason why the physician could not make a determination of the effect of that prior condition on the permanent disability arising from the injury. The physician shall then consult with other physicians or refer the employee to another physician from whom the employee is authorized to seek treatment or evaluation in accordance with this division in order to make the final determination.”
Sample Doctor Letter
Apportionment
Thank you for agreeing to evaluate the application for purposes of determining certain medical issues in this matter. Upon completion of your examination, we would appreciate if you would provide a copy of your report to the attorney for applicant as well as a copy to us, together with your billing items, in order assure prompt processing for payment.
1. Please be sure to remember that we are governed by SB 899 insofar as establishing permanent disability [ based upon AMA Guides incorporated “impairment”] under the new Permanent Disability Rating Schedule (hereafter 2005 PDRS) and apportionment to causation, which is more fully referenced below. In this regard, your evaluation should reflect a full and complete assessment so that the history should be complete, including a report of the injury, prior status, clinical chronology, current status and past medical history. Please compare the history provided by the examinee with the history documented in the medical records.
2. Is the applicant permanent and stationary from the effects of the industrial injury? For your reference, the Administrative Director defines the term “permanent and stationary,” as ‘the point when an impairment has reached maximum medical improvement (MMI), meaning it is well stabilized and unlikely to change substantially in the next year with or without medical treatment.[1] If the applicant is permanent and stationary, then please specify the date upon which he/she became permanent and stationary.
3. The physical examination should document all relevant findings in accordance with the AMA Guides, 5th Edition. These would include, among other things, the mechanism of the injury, the onset of symptoms if any, concurrent causes of the injury, if any and the specific parts of the body injured or claim injured. The physical examination should also encompass positive, negative and non-physiological findings. Kindly note the parts of the body parts and or/organs claimed injured as reflected in the medical record if they are different from those parts of the body and or/organs claimed injured by the applicant.
4. What are the current diagnoses and which of these are associated with the referenced injury? Please discuss fully these diagnoses and their significance. Are there any non-physiological findings present on examination? Please explain the rationale for your conclusions.
5. To the extent that you have determined the applicant is at MMI and is therefore permanent and stationary, then the portion of your examination relating to impairment assessment is governed by the requirements set forth in the AMA Guides, 5th edition. Reference is made to Labor Code 4660(a) and (b) as follows:
(a) In determining the percentages of permanent disability, account shall be taken of the nature of the physical injury or disfigurement….”
(b) For purposes of this section, “the nature of the physical injury or disfigurement” shall incorporate the descriptions and measurements of physical impairments and the corresponding percentages of impairments published in the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (5th Edition) as to specific measurements, including atrophy, range of motion deficit, strength, damage to an organ system or body structure, gait, sensory deficits, muscle spasm, muscle guarding, asymmetry of spinal motion, root tension signs, muscle strength, reflexes, etc.
6. If spinal impairment is rated, please explain your choice of methods and how you determined impairment. For upper extremity injuries, please complete Figure 16-1 Upper Extremity Impairment Evaluation Record (5th Ed, 436-437. For lower extremity injuries, please explain the method (so that you have chosen with reference to Table 17-2 Guide to the Appropriate Combination of Evaluation Methods (5th Ed., 526).
7. For impairment ratings, please report the whole person impairment (WPI) rating for each impairment using the AMA Guides, 5th Edition, and explain how the rating was derived. List tables used and specific page numbers.
8. If the burden of the workers’ condition has been increased by pain-related impairment in excess of the pain component already incorporated in the WPI rating under Chapters 3-17 of the AMA Guides, 5th Edition, specify the additional whole person impairment rating (up to 3% WPI) attribute to said pain. For excess pain involving multiple impairments, attribute the pain in whole number increments to the appropriate impairments. The sum of all pain impairment ratings may not however, exceed 3% for a single injury. If you feel pain is ratable then please detail your methodology, including references to Tables, Figures and specific page numbers in the 5th Edition.
9. Please take note that for all dates of injury, apportionment of permanent disability is now based upon causation. This means you are permitted to find apportionment to causation even if you do not find that the apportioned factor was actually disabling. Accordingly, we request that you address the issue of apportionment to “causation.” This means that all prior apportionment statutes are no longer the basis upon which to establish apportionment. However, if there were for example, a prior labor disability existing before the industrial injury (former Labor Code Section 4750) this could certainly support current apportionment if it were part of the cause for permanent disability but it need not be the sole basis to find apportionment inasmuch as the finding of apportionment and how it is to be determined, has changed. Therefore, under the new apportionment statutes (see below) a determination shall be based upon reasonable medical probability as follows:
> Please set forth every factor, whether prior or subsequent to the industrial injury, that has caused any permanent disability, including prior or subsequent injuries. By “other factor” it is assumed that you should properly consider, but are not limited to, (1) pre-existing medical conditions, pre-existing, disease and or the natural progression thereof, or disease process, pathology, asymptomatic prior conditions, illness, functional impairment, disability, work restrictions, restriction of impairment in any activity of daily living, bodily or organ impairment/dysfunction, physical/emotional imitations; (2) prior injuries, accidents, trauma, concurrent; (3) concurrent conditions, causes or contributing factors, including but not limited to concurrent employment, concurrent industrial exposure, concurrent non-industrial incidents, exposures, activities, sports injuries, recreational or hobbies, activates of leisure; (4) subsequent injuries, accidents, traumas, disease, conditions, events, activities or illness
> Under the en banc decision of Escobedo v. Marshalls[xiv], you are specifically permitted to find apportionment to causation based upon asymptomatic prior conditions, retroactive prophylactic work restrictions/preclusions and/or pathology or to any other condition or factor, even those which would not have been apportionable under the prior but repealed statutes
> Within reasonable medical probability, what approximate percentage of the resulting permanent disability, if any, was the direct result of or directly caused by the injury arising out of and occurring in the course of the employment herein.
> What approximate percentage of the permanent disability is caused by other factors, whether prior, concurrent or subsequent to the industrial injury as set forth.
10. Is the permanent disability directly caused, by an injury or illness arising out of and occurring in the course of employment? __Yes ___No
11. Is the permanent disability caused, in whole or in part, by other factors besides the industrial injury or illness? ___Yes ___No
12. If the answer to paragraph 11 is “yes,” then please provide:
> The approximate percentage of the permanent disability that is due to factors other than the injury or illness arising out of and in occurring in the course of employment. Please outline a complete narrative description of what other factors existed and if you are able to do so, state the basis upon which you find other factors, such as whether they exist in the medical record, upon x ray, in other records or testimony, based upon examination findings or the nature of the illness, injury or disease or any other basis.
13. If you are unable to include an apportionment determination in your report, state the specific reasons why you could not make this determination.
14. Describe any continuing medical treatment related to this injury that you believe must be provided to the patient. “Continuing medical treatment” is defined as occurring or presently planned treatment. And describe any medical treatment the patient may require in the future. “Future medical treatment” is defined as treatment which is anticipated at some time in the future to cure or relieve the employee from the effects of the injury. Please include medications, physical medicine services, durable equipment, surgery, etc. Please note that all continuing or future medical treatment considerations should be based upon the ACOEM guidelines or if you deem appropriate, other nationally recognized, peer reviewed evidence based guidelines.[2]
Please let us know whether you require any further records or other information other than what has been transmitted herein. Please provide your written report, together with your billing item to the undersigned, in order to assure your prompt payment. Thank you for your courtesy and cooperation herein.
1.5 Psychiatric Claims
The same report evaluation tool should also apply to a psychiatric report. Here, however, special attention needs to be paid to some additional features, which are required:
· Are there actual events listed in the physician’s history as opposed to simple conclusions that Mary Stone was specifically subjected to harassment, mistreatment or abuse? Where are the specific facts?
· Are these facts events or perceptions?
· Over what period did these actual events occur?
· Is the psychiatric component instead a compensable consequence of the instant industrial injury? If so, when did these complaints emerge?
· Is there a psychiatric diagnosis which comports with the DSM-III?
· Do we have mental disorder or just some symptoms?
· Does the mental disorder require medical treatment?
· Are there comorbidites?
· Are the facts as alleged by the applicant true?
· Are the facts as alleged by the applicant complete?
· Are there omissions?
· Other causes?
· False and misleading history?
· Suppression of relevant “stressors” in the applicant’s life:
· What stressors did the doctor miss?
FAMILY:
∙ Deaths
∙ Illnesses
∙ Accidents and traumas
∙ Family members victims of crime
∙ Family financial losses
∙ Sick relatives
∙ Estrangement
∙ Family arguments
∙ Estrangement from family members
∙ Relationship issues
∙ Infidelity
∙ Separation
∙ Divorce
∙ Child custody issues
∙ Foster children
∙ Adoption issues
∙ Disputes over inheritance
∙ Sibling rivalries
∙ Childhood issues
∙ Parental separation
∙ Parental divorce
∙ Parental alcoholism
∙ Parental mental issues
∙ Parental abuse
∙ Parental abandonment
∙ Parental infidelity
∙ Assault/molestation
∙ Children in school
∙ Children in trouble with the law
∙ Family member addictions
∙ Family member alcohol use
∙ Dependency issues
Mental History/Stress History
∙ Prior psychiatric claims
∙ Treatment
∙ Hospitalization
∙ Prior traumas
∙ Gun shot
∙ Stabbing
∙ Sexual assaults
∙ Physical assaults
∙ Kidnapping
∙ False imprisonment
∙ Use of psychotropic drugs
∙ Sleeping pills
∙ Counseling
∙ Suicide attempt
∙ Depression
∙ Anxiety
∙ Panic attacks
∙ Hyperventilation
∙ Phobias and fears
∙ Drug counseling
∙ AA
∙ Alanon
∙ Drug rehabilitation
LEGAL
∙ Bankruptcy
∙ Foreclosure
∙ Repossession
∙ Driving with suspended CDL
∙ DUI arrest/conviction
∙ Drug arrest/conviction
∙ Tax problems
∙ Arrests
∙ Convictions
∙ Jail or prison
∙ Sex offenses
∙ Court ordered rehabilitation
∙ Financial problems
∙ Party to lawsuit
∙ Modification orders
∙ Child support collection and enforcement issues
∙ Welfare
∙ Prior criminal activity
∙ Prior fraudulent activity
∙ Child custody
∙ Social Service Actions
∙ Deportation
∙ Immigration Status
∙ Crime Victim
∙ Prior workers’ compensation claims
∙ Prior claims of personal injury
∙ Neighbor suits
∙ Evictions
∙ Small Claims
∙ Court martial
OTHER STRESSORS:
∙ Noisy neighbors
∙ Violence
∙ Gang activity in neighborhood
∙ Witness traumatic event
∙ Being homeless
∙ Being evicted
∙ Driving without a license
∙ Spouse or significant other is laid off
∙ Too many people in the house
∙ Living conditions
∙ Alimony and child support issues
∙ Business failures
∙ Burglary
∙ Fire in home
∙ Parents are sick
∙ Terminal illness
∙ Co-morbidities
∙ Other illness
∙ Cancer
∙ Heart attack
∙ Congenital problems
∙ Pregnancy
∙ Abortion
∙ Effects of taking medications
THINGS TO LOOK FOR WHICH THE DOCTOR MIGHT NOT TELL YOU ABOUT;
∙ Pre-existing personality disorder
∙ Pre-existing mental disorder
∙ History of violence
∙ History of anger
∙ Concurrent causes: menopause, pre-existing disability; other medical conditions; e.g. hypothyroidism
∙ Effects of medications
∙ Abuse of spouse or significant other
∙ Being laid off; financial problems
∙ Concurrent employment
∙ Not being able to sleep because spouse/significant other works late shift or family members in close quarters
The GAF
Please remember that psychiatric permanent disability is now based upon the so-called “GAF” which is actually part of the DSM.
> Page 1-12 of the new Rating Manual says “shall.” And then converted to a whole person impairment using the GAF conversion table.
> The GAF replaces the old 8 psychiatric protocols under the 1997 PDRS.
ADL GAF
Impairment percentages or ratings developed by medical specialists are consensus-derived estimates that reflect the severity of the medical condition and the degree to which the impairment increases an individual’s ability to perform common activities of daily living (ADL), excluding work. The whole person impairment percentages listed in the Guides estimate the impact of the impairment on the individual’s overall ability to perform activities of daily living, excluding work. (See Table 1-2 on page 4 of the Guides)
GAF includes
Occupational functioning
In this respect, because it includes occupational functioning, it is broader than ADL.
Also includes psychological functioning
Also includes social functioning
Includes the Physical Limitations
Does not include PHYSICAL LIMITATIONS OR ENVIRONMENT
SOME KEYS TO DEFENDING A PSYCHIATRIC CLAIM
Things Associated with a Strong Defense:
Remember, you aren’t there. It is the applicant who is at the examination and your interests are represented in the form of whatever written material which has been sent to the doctor. That evidence may very well include a deposition which could represent your best voice at that examination!
Using the Deposition for success:
· Sending the transcript to a physician for review and comment
· Allow your defense witness to review the transcript so that can be ready to refute and challenge the testimony if called upon to do so
· To impeach the applicant at the WCAB
· To drive settlement
· To support a Thomas finding on a compromise and release
· As evidence at a doctor cross examination
· To support motions or trial brief challenging medical evidence
When conducting an applicant psychiatric deposition you want to:
> Obtain facts rich in detail with a full painted picture
> Asking questions which probe and establish something
> Asking questions which elicit “yes” or “no” responses
> Questions that enlighten and explain
> Questions that negate and deny
> Questions that fill in the gaps
> Questions that explain ambiguities or resolve conflict
> Questions that elicit damaging admissions
> Questions that highlight inconsistency
> Questions that show the doctor got the wrong medical history or the wrong complaints
> Questions that show the doctor didn’t get enough detail about the complaints
> Questions that are non-scripted
> Questions designed to flesh out phantom complaints
> Questions which permit you to control the testimony
> Questions which permit you to gain information that you need for discovery completion
> Questions which tell you about the applicant
> Questions which tend to demonstrate the applicant may not be candid or truthful
Deposing the psychiatrist/psychologist
> Establish that the doctor did not get an accurate history of the symptoms;
> That the doctor did not get substantial information on function and did not ask enough in depth questions
> The psyche testing was not properly administered
> The testing was not properly scored or graded
> The applicant had less than an 8th grade reading comprehension level
> Attacking the validity of the GAF
> Using the broader list of ADLS to back door the GAF, which is narrower, and which does not include physical things.
> Using the deposition as a basis to attack the validity of the GAF
[1] PDRS from the Administrative Director, 11/14/04, referencing the AMA Guides, 5th Edition, Page 2.
[2] Any other than ACOEM guidelines, should be specifically identified and referenced by work, date of publication, specific chapter and section, page number and applicable standard or guideline
[i] Copyright 2010 Landegger/Baron/Lavenant/Ingber
[ii] 8 CCR 10606:
[iii] 8 CCR 10600
[iv] Lab Code 4060, 4061, 4062
[v] McAllisterr v. WCAB (1968) 69 Cal. 3d 408, 33 CCC 660;
[vi] Hegglin v. WCAB (1971) 4 Cal 3d 162, 36 CCC 93; Place v. WCAB (1070) 3 Cal. 3d 372, 35 CCC 525; Zemke v. WCAB 68 C 2d 798.
[vii] Granado v. WCAB (1970) 69 Cal. 2d 39.
[viii] Escobedo (infra)
[ix] Lab C 4660 provides that the nature of the physical injury or disfigurement shall incorporate the descriptions and measurements of physical impairments and the corresponding percentages of impairments published in the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (5th Edition)
[x] 8 CCR 9785(f)(8)
[xi] This should be a “red flag’ since according to The Guides at pp. 376, under table 15-2, radicular symptoms mediated by L5-S1 would be expected to be in the posterior leg and lateral foot and not the thigh, which would be L4-L5.
[xii] The AMA Guides define impairment as “a loss, loss of use, or derangement of any body part, organ system, or organ function.” ( AMA Guides to the Evaluation of Permanent Impairment, 5th Edition, pp. 2)
[xiii] Escobedo v. Marshalls (2005) 70 CCC 604
[xiv] (2005) 70 CCC 604; en banc decisions are binding upon all WCAB tribunals per 8 CCR 10341
© Copyright 2010 Landegger/Baron/Lavenant/Ingber. Reprinted with permission.
Introduction –Past and Present