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A series of articles emphasizing practical
knowledge you can't find in practice guides
and interviews with experts who share
their techniques for effective and efficient
case management
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Articles emphasizing practical knowledge you
can't find in practice guides
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Profiles of people who changed workers’
compensation law.
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• Warren
Schneider
• Marjory Harris
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Everyone even remotely involved in the California Workers’
Compensation system knows how significantly SB 228 and SB 899,
together with case law, and recently enacted regulations have
changed the landscape for injured workers, employers, insurance
carriers, physicians, attorneys and others. Recent decisions
such as Pendergrass, Baglione, Knight,
Babbitt, Sierra Pacific, Welcher, Romero,
Costa, Benson, and many others, are bringing the
physician into the legal environment more than ever. This includes,
but is not limited to decisions as to rating, apportionment,
medical control, retroactive application of the American College
of Occupational and Environmental Medicine’s, Occupational
Medicine Practice Guidelines, 2nd Edition (ACOEM), and Guides
to the Evaluation of Permanent Impairments, 5th Edition, (AMA
Guides), future medical care, and even affecting issues such
as diminished future earning capacity also known as DFEC.
It is presumed that when the legislature passed SB 228 and SB
899 that they intended that both ACOEM and the AMA Guides would
be closely and correctly followed by physicians. This became
even more important with the introduction of Medical Provider
Networks (MPN). But it is well known to the State through the
Disability Evaluation Unit (DEU), that nearly 80% of the reports
it reviews are not AMA compliant, and it is presumed that even
more of those reports would not be ACOEM compliant. This could
not have been the intent of the legislature. At the end of the
day, artificially low disability rating as a result of doctors
who either do not know, or do not correctly apply ACOEM and
the AMA Guides cause cases to remain open longer, increased
and unnecessary litigation, and unfair compensation for the
injured worker.
The PTP in post reform workers’ compensation is in significantly
more legal peril than ever before (LC §4068) thereby necessitating
an increased devotion to “total case management”
that closely adheres to the strictures of SB 228 and SB 899,
hence, ACOEM compliance. Significantly more attention to detail
and focused attention are now compulsory with a resultant demand
for increased “face-to-face” time and interaction
with a patient.
Nearly five years after the passage of SB 228, and four years
after SB 899, the solution to obtaining an accurate recovery
for the injured worker resides in training a corps of Primary
Treating Physicians (PTPs). Those PTPs must be prepared to spend
the necessary time with the injured worker so that ACOEM paradigms
are correctly used. As the patient approaches Permanent and
Stationary (P&S)/Maximum Medical Improvement (MMI), it is
the position of this article that PTPs must have available to
them AMA experts who can be designated by the PTP to complete
the MMI/P&S examination and report under the authority of
LC §4061.5; 8 CCR §9785:3(c) and State of California
Instructional Document IMC §81556.
Leading attorneys in California have presented five building
blocks that are essential for applicant attorneys to follow
in order for the injured worker to receive a fair and correct
award in the post SB 899 era.
• The first building block is a good working knowledge of ACOEM.
• The second building block, which may or may
not be practical, is taking and maintaining medical control
(taking the patient out of the MPN for treatment).
• The third building block is making sure the
treating physician follows the mandates of ACOEM by utilizing
the services of other specialists and
addressing all of the injured worker’s complaints (developing
the record).
• The fourth building block is obtaining a Functional Capacity
Assessment (FCA). ACOEM, p. 137 gives the authority for the
FCA to be ordered by the employer, claims administrator or
the treating or evaluating physician.
• The fifth building block is a good working knowledge
of the AMA Guides.
If these five building blocks are followed, with the caveats
that the PTP is thoroughly knowledgeable in ACOEM, is prepared
to take the time necessary to follow ACOEM guidelines, and at
the appropriate time designates an expert in the AMA Guides
to prepare the MMI/P&S report, (P&S and MMI are the
same for rating purposes, 8 CCR §§9785, 101520) then
the injured worker should receive the Whole Person Impairment
(WPI) and eventual disability they deserve.
The purpose of this paper is to review the role of ACOEM, AMA
Guides, FCAs, Employability Screening Studies (©2007, AMARC),
Diminished Future Earning Capacity (DFEC), and the criteria
for reports to be substantial evidence as required by recent
laws, regulations and cases.
The Case for Seizing and Maintaining
Medical Control
Clearly, getting the best doctor for the injured worker, whether
in or out of the MPN, should be the highest priority for both
the attorney and the patient. However, the key question, as
set forth by these attorneys, is whether the MPN doctor will
address all issues, including potential compensable consequences
resulting from the work related injury, especially those associated
with internal medicine, sleep, or psychological issues. There
is ACOEM licensed technology in California which insures that
entire treatment plans are absolutely 100% ACOEM compliant.
Whether the patient is kept in the MPN, or taken out, ACOEM-licensed
treatment plans should substantially reduce problems with UR,
and will be very helpful if the matter goes to court, especially
for penalties for failure to pay self-procured medical costs
(LC §§5814; 5814.6; 8 CCR §§ 9792.11 –
9792.15 (Effective June 7, 2007) 8 CCR §§10225 –
10225.2 (Effective May 26, 2007).
Some of the most prestigious lawyers in the State believe that
the only way to get fair and accurate rating for their client
is to remove them from the MPN. They believe, rightfully or
wrongfully, that the doctor in the MPN is in contract with the
insurance company and will not follow ACOEM, nor look regularly
at compensable consequences of the injury for fear that such
actions may jeopardize their MPN contract, and consequently
negatively affect their patient flow and/or their cash flow.
According to these lawyers, in order to achieve a fair resolution
of the case for the client and to survive in the post SB 899
environment, it is extremely important that the applicant attorney
seize and maintain control of medical treatment as soon as possible.
Clearly the decision to work inside or out of the MPN is crucial
to the case. How the case starts is often times, fortunately
or unfortunately, how it finishes. The WPI at the end of the
case depends upon how the case was managed by the PTP. Did the
PTP follow ACOEM algorithms and refer the patient to appropriate
specialists for evaluation and treatment in an ACOEM compliant
manner? Blood pressure, problems with medication, diabetes,
addiction or dependency, sleep disorders, depression, to name
a few, cannot be rated under the AMA Guides, if those
problems are not identified and treated during the case.
ACOEM, AMA Guides and Substantial
Evidence
Treatment protocols are promulgated by ACOEM; therefore, to
a large degree ACOEM is the precursor to an appropriate WPI
rating. It is perhaps axiomatic that if ACOEM is not used correctly
by the PTP or ACOEM protocols are not insisted upon by the Qualified
Medical Examiner (QME) or the Agreed Medical Examiner (AME),
that it is virtually impossible to achieve an appropriate AMA
Impairment rating.
The greatest change affecting treatment by doctors comes from
the enactment of Labor Code §4604.5 which gives the Administrative
Director the charge of adopting a medical treatment utilization
schedule pursuant to Labor Code §5307.27. Until this is
accomplished, ACOEM shall be presumptively correct
on the issue of extent and scope of medical treatment, regardless
of the date of injury (LC §4604.5; 8 CCR §9792.8).
The State has mandated that all treatment must be ACOEM compliant
and all reports, whether that of the PTP, QME, or AME, address
the issue of extent and scope of medical treatment. ACOEM requires
avoidance of costly, ineffective and time-wasting therapy; it
necessitates appropriately reasoned and well-timed diagnostic
and specialist referrals as well as active care treatment protocols.
In addition, an accurate, specific initial working diagnosis
is the key. Outcomes Assessment monitoring with Patient Inventories
and Functionality Examinations are now the absolute
required standard under ACOEM for substantiation of
continued care and/or referral. These are time intensive evaluative
processes that require constant and diligent follow-up, evaluation
and monitoring. To be more specific, ACOEM requires the physician
to address all complaints, and inquire about psychological,
sleep and sexual problems, as well as addressing the injured
worker’s functional capacity. Both for issues of compliance,
and to avoid any potential liability to the PTP or evaluating
physician for failure to provide diagnosis and/or treatment
required by code(s), it is important for the PTP, QME, or AME
to be ACOEM compliant in their treatment and/or report recommendations.
Accordingly, it is no longer the role of the QME or AME to decide
whether the treating physician was correct on the matter of
treatment issues, but whether the PTP correctly followed ACOEM,
and if ACOEM was not followed it is the responsibility of the
QME or AME to bring the treatment of the injured worker within
the ACOEM Guidelines. (For a parallel as applied to MPNs see
LC §4616.4 (b) and (e)).
Beyond ACOEM, a report, whether it is a report of the PTP,
QME, or AME must constitute substantial evidence. Failure to
follow the mandates of ACOEM could render the medical report
inadmissible as lacking in substantial evidence. Substantial
evidence is best described by the court in Escobedo
vs. Marshalls
(2005) En Banc, 70 CCC 604. Escobedo holds that medical
opinion is not substantial evidence, if within the report, there
are “surmise, speculation, conjecture or guess,”
or if a physician does not set forth the reasoning that supports
their conclusions. (Escobedo, pp. 620- 621).
In addition to ACOEM, and being substantial
evidence, the report must also be AMA compliant. It is well
known, but not always followed by many physicians, that the
AMA Guides require the physician to address the entire
body or as the AMA Guides call it the “whole
person.” Failure to evaluate the whole person could also
render the medical report inadmissible as lacking in substantial
evidence. For a report to be AMA compliant it must meet the
standards set forth by Section 2.6 of the AMA Guides
and 8 CCR §10606. (Note: For a good explanation of substantial
evidence and how the AMA Guides apply to California
law, the doctor is directed to The Lawyer’s Guide
to the AMA Guides and California Workers’ Compensation,
2007, by Robert G. Rassp, available through LexisNexis Press
by calling 800-833-9844).
ACOEM requires significantly more attention to detail, and focused
attention is now compulsory with a resultant demand for increased
“face-to-face” time and interaction with a patient.
A busy orthopedist or medical doctor may simply not have the
time, emotional preparedness, or even, perhaps, the financial
ability to limit his/her practice time to these extremely time
consuming efforts.
Specifically, the post reform PTP must be willing to accomplish
an exceedingly detailed ‘New Patient Intake and Consultation’
that identifies potential case complicating risk factors; in
addition, a thorough ‘ACOEM based Examination’ that
also identifies risk factors is required. Identifying these
risk factors is critical for early interdiction of chronicity
and notification of possible complicating case factors that
could result in delayed recovery, inaccurate disability and
less than optimal treatment and/or psychosocial outcomes. ACOEM,
p. 83, notes “Thus, primary prevention, early detection,
and secondary prevention of delayed recovery are key parts of
the occupational health practitioners’ role.”
These outcome assessments are critical, because as previously
stated, ACOEM “shall be presumptively correct on the issue
of extent and scope of medical treatment, regardless of the
date of injury” (LC §4604.5; 8 CCR §9792.8),
and failure of a physician to follow the mandates of ACOEM could
render the medical report inadmissible as lacking in substantial
evidence.
ACOEM licensed treatment plans should substantially reduce problems
with UR, and will be very helpful if the matter goes to court,
especially for penalties for failure to pay self procured medical
costs (LC §§5814; 5814.6; 8 CCR §§ 9792.11
– 9792.15 (Effective June 7, 2007) 8 CCR §§10225
– 10225.2 (Effective May 26, 2007).
Assessing Functional Capacity
An FCA is a comprehensive battery
of performance-based assessments used to determine an individual’s
ability for work and the Activities of Daily Living (ADLs),
as the ADLs apply to the injured worker’s ability to
work (Five out of Eight ADLs can affect work (Table 1-2, AMA
Guides, p. 4). It is very important for the PTP or QME/AME
to recognize that the assessment of the ADLs start at the beginning
of the case with ACOEM, regularly assess ADLs throughout treatment,
as opposed to having the ADLs assessed for the first time at
the MMI (which, unfortunately, is what is currently being done
in the vast majority of cases throughout the State).
An FCA is recommended by ACOEM (ACOEM, p. 137; also see ACOEM
pp. 21, 34), the AMA Guides (§2.6(a)), the AMA Master Guides
(p. 11), and is required by the State of California to make
a report AMA compliant (The Lawyers Guide to AMA Guides and
California Workers’ Compensation, §4.03 [1] and [2]
citing 8 CCR §§ 10606, 9785.4 and AMA Guides §2.6).
In addition, the Employability Screening Study (©2007,
AMARC), incorporated into the FCA, allows attorneys to determine
whether a vocational expert (VE) is needed to develop a case
for DFEC.
To be more specific, functional limitation is defined as the
limit in the ability to perform basic activities of daily living,
including work. The Residual FCA is a general FCA, as opposed
to a job specific FCA, and is a tool used to obtain objective
information about a patient’s current functional and physical
abilities despite the existence of impairment.
An FCA is required for a report to be substantial evidence.
The Lawyer’s Guide to the AMA Guides and California
Workers’ Compensation (2007), Robert Rassp §3.02,
4.03; 8 CCR 10606; AMA Guides, 5th Edition, §2.6.
Every injured worker who the physician believes is going to
have impairment, or the physician believes cannot return to
their usual and customary job, requires an FCA. This is important,
because the role of the physician is no longer to determine
disability but to determine impairment as set forth in the AMA
Guides. The Guides are clear that they do
not determine disability, and to determine disability, the evaluator
must go beyond the Guides and evaluate factors such
as work experience, transferable skills, knowledge, and education
which are outside the scope of the Guides.
The AMA Guides mandate that a physician assess the
medical impairment’s impact on the individual’s
ability to work. To do this the physician needs to understand
the essential functions of the occupation of the injured worker
and their specific job, as well as how the medical condition
and/or the impairment interact with their occupational demands.
The AMA Guides state that a physician may need to obtain
additional expertise to define functional abilities and limitations,
as well as vocational demands. (AMA Guides, p. 18).
In addition, ACOEM mandates that a physician understands and
recognizes the limitations of their own ability to either predict
an individual’s functional capacity or define what is
safe and/or reasonable for an individual to do. (ACOEM, p. 34).
Following the Escobedo rule for determining whether a
report constitutes substantial evidence, the FCA study is primarily
a computerized assessment that provides much greater accuracy
and reproducibility than manual measurements performed by many
physicians, and the report provides a solid basis for the opinion
of the physician completing the MMI/P&S, QME, or AME, rather
than a physician’s “educated guess” as to
matters of the functional capacity of an individual.
Thus, an FCA is indicated for all PTP MMI reports, and for
all QME and AME reports. The purpose of the FCA report is,
by the use of bio-measuring computer technology, to take the
guesswork out of measurements (See generally: Escobedo
vs. Marshalls
70 CCC 604, 620-621) and provide to the evaluator, (PTP, panel
QME, or AME), data that can be adopted and incorporated into
their report, thus making their report ACOEM and AMA compliant
and admissible as substantial evidence.
The first objective of the FCA is to provide reproducible computer
generated measurements, with a built in validity test, for AMA
Impairment Ratings. With regard to the spine there are two methods
of measurement: diagnosis related estimate (DRE) and, the second
and more difficult, range of motion (ROM). DRE is relatively
new to the AMA Guides, introduced in the 4th Edition,
because physicians found the ROM method overly time consuming
and reviewers found the ROM measurements not to be consistent,
accurate or reproducible.
In the 5th Edition, the DRE method must be utilized in certain
circumstances such as a corticospinal tract involvement, while
the ROM must be utilized when the disorder involves more than
one level within a sub-region. (See Guides, 5th Edition,
p. 402). In certain circumstances utilizing DRE, as opposed
to ROM, results in a higher rating. However, in the vast majority
of cases ROM results in a higher impairment rating. This result
occurs because DRE only rates diagnostic impairments, while
ROM rates three items: diagnostic impairment(s), loss of range
of motion, and nerve damage (sensory and motor).
When either the DRE or ROM can be used, the injured worker is
entitled to the highest rating. Throughout the United States
many physicians, who utilize the 4th or 5th Edition, default
to DRE because ROM measurements remain cumbersome and unreliable.
This leads to many unnecessary depositions and increased litigation.
By providing detailed and accurate measurements, together with
the WPI calculation for the musculoskeletal component of the
injury, it is hoped the FCA measurements will save the evaluator
a significant amount of time and frustration, and provide to
all parties and State agencies, information which will help
make reports AMA compliant, and lessen the amount of disputes
as the case moves through the system.
The FCA also provides information on the residual functional
capacity of the injured worker as applied to work related activities,
since the AMA Guides“permit an evaluating doctor
to compare a person’s pre-injury capacity to the residual
functional capacity post-injury.” The Lawyer’s
Guide to the AMA Guides and California Workers’ Compensation
(2007), Robert Rassp §3.02, 4.03.
For this reason, the FCA is particularly good for rating by
analogy using the ADLs. Assume for an upper extremity tendonitis
the Functional Capacity shows a 50% loss of the pre-injury capacity.
Since the upper extremity has a 60% value (Table 16-3, p. 439)
in the AMA Guides, a 50% loss of pre-injury capacity
represents a 30% WPI. Regarding rating by analogy, Linda Cocchiarella,
Editor AMA Guides, 5th Edition has said “The
doctor has the flexibility to use their clinical judgment to
help determine what an accurate impairment rating is….If
you have a functional loss that would qualify for an impairment
rating, then you (the doctor) are justified in discussing why
you think an impairment listed in the AMA Guides may
be too low, and by analogy, to use some other type of impairment
number in the Guides or some analogous condition to
give a different rating for that particular disorder.”
Most doctors will default to the DRE method as opposed to the
ROM, as it difficult to correctly perform the measurements for
ROM, and is time consuming. Obtaining the FCA solves this problem.
The doctor who refers for the FCA, because of the complexity
of the FCA, it usually takes an hour to review the record.
It is important for the physician to know that the role of
the FCA is to provide measurement, and that the FCA does
not provide any diagnosis, nor recommend any treatment for the
injured worker.
Specifically, the FCA utilizes computer-aided testing systems
(called ‘static’ testing) that employ AMA Guides
testing criteria as well as information from national agencies
(National Institute of Occupational Safety and Health) in order
to evaluate the patient’s spine and extremities for objective
orthopedic information that the FCA can compare to population
normals, or to the AMA Impairment Tables in order to assist
the referring doctor in making judgments as to functional capacities,
ADL restrictions and/or the impairment rating. Each static test
is repeated several times in order to establish a ‘CV’,
a number based on internal consistency which assists in determining
the validity of an individual’s effort.
Static testing is augmented by “Dynamic Testing”,
which has the patient actively bend, lift from floor or at a
bench, reach, kneel, squat, crawl, and perform dexterity testing,
etc.
These measurements are what the PTP, or AME/QME, needs to correctly
complete the ‘FCA’ portion of the state PR-4 form
(see pp. 5, 6) and to provide the Residual FCA necessary to
make the final MMI report or the PQME or AME report AMA compliant,
and as such, provide a report that meets the substantial
evidence requirements of reports submitted as evidence in a
workers’ compensation proceeding.
Static and dynamic information is then drawn together into narrative
form (including charts, estimates for occasional and frequent
lifting capacity, etc.) and summarized for review and interpretation
by the referring physician.
Finally, the FCA and ADL analysis is also a good way to avoid
0% WPI. When the ADLs are significantly affected it is impossible
to get a 0% WPI. For this reason, and for a fair outcome for
the injured worker, the physician must make sure the ADLs are
properly addressed and rating by analogy is considered.
For all the above reasons, it is only a matter of time before
the courts, State Agencies, adjusters and attorneys for both
sides ask: where is the FCA?
The Employability Screening Study
The Employability Screening Study (©2007, AMARC) is incorporated
into the FCA, and allows attorneys to determine whether a VE
is necessary to calculate DFEC as part of his/her case development.
Designed by perhaps the leading VE in the State of California,
Robert Hall, PhD, the Employability Screening Study reviews
key factors such as earnings, language and other transferable
skills and provides the attorney a final screening number. The
lower the score is below 12, the more likely that injured worker
is to prevail on a DFEC claim. If the score indicates that a
DFEC workup is needed, the next step is for the attorney (not
the doctor), to utilize a VE, who will evaluate the injured
worker and the FCA and prepare the DFEC analysis.
DFEC is well known to workers’ compensation lawyers in
California, but is less known to doctors. It is a vital concept
to resolution for some injured workers. A doctor or lawyer need
only look at the number of low impairment ratings when the patient
is unable to return to their usual and customary job to understand
the critical importance of DFEC as a safety net for these people
who otherwise would have nowhere else to turn for an appropriate
award (see the article by Robert Hall,
PhD accompanying this article).
While the Employability Screening Study is only a tool, and
does not replace an attorney’s assessment of the entire
DFEC evaluation of their client, it is hoped that this screening
evaluation will save time for all parties and bring into the
court system only those DFEC cases which are well founded.
In conclusion, the FCA is a necessary component of any P&S/MMI
report where the injured worker cannot return to their usual
and customary work without restriction. Use of the FCA can lead
to making the report both ACOEM and AMA compliant, and without
the FCA the report is not substantial evidence. By the use of
computer assisted bio-metric measurements and other studies
included in the FCA, cases can be closed much earlier with the
correct award for the injured worker.
Accurate Medical Assessment Rating Centers performs FCAs
at locations throughout California. For further information
on obtaining an FCA for an injured worker, contact Melissa Melgosa
at 800-479-0643.
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