It is always a good idea to attend the CAAA bi-annual conventions and seminars which provide an excellent review of the many pertinent legal issues in our industry. Plus, these conventions provide great insight into the strategies of the applicant’s bar.
In attending the most recent convention in San Francisco, held over the weekend of June 30th to July 3rd, the following topics were covered with some brief comments regarding the discussions held amongst the panelists presenting the seminars:
The focus of this class involved CAAA’s recommendation to have its members avail themselves of the 2nd/3rd opinions within the MPN, as provided by Labor Code § 4616.3(c) and 4616.4(b). These sections provide:
- An injured worker who disputes the diagnosis or treatment prescribed by the PTP may seek the opinion of a 2nd physician in the MPN, and if that physician’s diagnosis or treatment are disputed, the injured worker may seek the opinion of a 3rd physician within the MPN.
- If the 3rd physician’s opinion remains disputed, the injured worker may request an “MPN IMR,” which is submitted to the administrative director on a prepared form.
The following were considered advantages to MPN IMRs (as opposed to an IMR of a UR denial):
- There are no time limits to object to a PTP opinion and request 2nd/3rd opinions
- 2nd/3rd physicians’ opinions are not subject to UR (at least according to CAAA)
- 2nd/3rd opinion physicians can order diagnostics
- The IMR physician can request a physical examination of the applicant, unlike Maximus
The following pertinent issues were covered:
- Labor Code § 4063 provides that if the evaluation of a QME (or AME) resolves an issue so as to require the employer to provide compensation, the employer shall commence payment of compensation or file a DOR. The contention of CAAA being that if a QME report indicates TTD status, defendants must pick up TD benefits whether or not a PTP report supports it.
- Challenging the specialty. This should be done in 2 concurrent ways:
- Per CCR 31.5(a)(10) upon written request to the Medical Director with supporting recent medical documentation and argument as to why the specialty is inappropriate.
- Per CCR 31.1(b) disputes regarding the appropriateness of the specialty may be submitted to a WCJ via DOR.
- Judge Szelenyi (Northern California) was of the general opinion that the panel QME specialty should follow the specialty of the PTP. So if the PTP is a chiropractor, pain management specialist, or psychologist, she would likely rule that the QME panel be in the same specialty, as opposed to an orthopedist or psychiatrist.
- A recent panel decision (rendered last week) supported the notion that a late supplemental report does NOT provide good cause for issuance of a replacement panel, despite CCR 31.5(a)(12) and 38(i) which provides for a 60-day time frame.
- Romero & Navarro cases reviewed. These cases support the following propositions: a) once an injured worker becomes represented, the panel process must start over per Labor Code § 4062.2, even if a panel was selected while unrepresented per Labor Code § 4062.1; b) a new date of injury (for example an additional CT being alleged) allows either party to obtain a new panel. The latter was recently extended in a recent case in which there was joinder of a new party defendant, who was entitled to obtain a new panel.
- Time limits
- Labor Code § 4061. There is no time limit to object re PD. The recent Batton case (2015) interpreted subsection (i) as holding that a self-procured report is inadmissible for the purpose of rebutting the PD opinion of an AME/QME.
- Labor Code § 4062. Object within 20 days from receipt of report if represented, 30 days if unrepresented, on issues of disability status, nature and extent of injury, causation and need for medical treatment to disputed body parts (but not medical necessity issues).
- Vocational expert opinions must consider medical apportionment in order to constitute substantial evidence per the appellate case of Borman 218 CA 4th 1137.
- CAAA argues that an expert can still opine that despite the apportionment to non-industrial factors, when considering Residual Functional Capacity, the industrially related disability and effects on ADLs is sufficient to argue total permanent.
- CAAA argues that per the Kite case 78 CCC 213, a medical evaluator is permitted to add separate impairments, rather than rely on the combined values chart, based upon the fact that they may not “overlap” and there is a synergistic loss that is not properly accounted for by the CVC.
- Each evaluator must make their own apportionment determinations and must explain the “how and why” per Escobedo. One evaluator cannot simply adopt the determination of another in a different specialty.
- Psych apportionment does not have to follow orthopedic apportionment. Panel decision Jackson (2013) found that the psych QME provided a separate rationale that the psych disability resulted from 3 back surgeries which were all industrially related, despite the ortho AME finding 50/50 apportionment (it was noted in the decision that the defense failed to depose the psych QME in order to seek clarification).
- In the Chimeri case, the orthopedic injuries were subject to valid Benson apportionment. The injured worker developed CRPS, and the pain and medications made him unemployable. The court held that the CRPS and medication usage were 100% industrially related.
- Officer presumption cases. Because of the non-attribution clauses, the only apportionment that is valid is the conclusive presumption provided by Labor Code § 4664, BUT you must still prove overlap. And, under the new PDRS, it is more difficult to do so than it was under the old PDRS with the use of work restrictions. Labor Code § 4663 does not apply.
- Labor Code § 4662(a) – conclusive total disability, apportionment does not apply
- Labor Code § 4662(b) – total permanent disability “according to the fact,” apportionment does apply
- A minimal standard “contributing cause” is all that is needed to support industrial causation. Circumstantial evidence may be used.
Of course the emphasis here was ROM methodology over the DRE, as well as discussion regarding alternative chapters in the Guides per Almarez-Guzman:
- Table 13-22 for the cervical spine, which is the chronic pain table regarding an upper extremity (also relates to RSD/CRPS).
- Figure 15-19 which converts WPI into regional spine impairments. There are split panel views regarding the use of this “figure” (Note: it is not a table).
- Table 6-9 regarding hernias. Panel decisions are split; there must be sufficient justification by the evaluator to invoke this table as being more accurate.
- Table 13-15 related to station and gait disorders (use of assistive devices to ambulate).
- Table 17-5 also related to gait derangement for lower extremity impairments, need to use a cane, gait disorders (panel case sanctioned AME’s justification due to injured worker’s drop foot).
- Table 16-35 regarding upper extremity impairment due to strength deficit. A panel decision allowed its use to correct DRE cervical III for shoulder strength loss as a component of the neck injury.