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How to get the PTP Paid for a
Comprehensive Medical-Legal Evaluation


By Samuel R. Swift, Esq.


Sam Swift has been representing injured workers in Santa Clara County since 1973. In this article he explains how to get the Primary Treating Physician paid for narrative reports
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> Ogilvie and the Vocational Expert
> Ogilvie Trial Brief
> Editor's Rant: Limping into 2010

In this era of less than ideal QME panels, it has become increasingly important to procure the opinion of the Primary Treating Physician [PTP] on many issues, particularly on treatment denials, disputes over AMA impairment ratings, and apportionment battles. The problem we confront most often is how to get the PTP paid a reasonable fee to take the time to address these issues. What follows is an updated version of an article I wrote in 1996 which outlines the steps necessary to have the PTP paid at QME rates for issuing reports on disputed issues, including those mentioned above.

The primary treating physician is entitled to be paid a minimum of $625 in most cases for issuance of a report which explains the basis of a disputed treatment recommendation or which, when there is a dispute, describes the nature and extent of permanent disability and/or apportionment. The legal basis of this proposition is set forth in this article.
 
The primary treating physician is entitled to be paid a minimum of $625 in most cases for a report which explains the basis of a disputed treatment recommendation or which, when there is a dispute, describes the nature and extent of permanent disability and/or apportionment.
 
The rules of the Administrative Director outline the reporting duties of the PTP at Title 8, California Code of Regulations, §9785. Subsection (d) provides that the PTP "shall render opinions on all medical issues necessary to determine the employee's eligibility for compensation in the manner prescribed in subdivisions (e), (f) and (g) of this section.”

Subsection (e) requires the PTP, within 5 days of the initial exam, to report, among other things, on the methods, frequency, and direction of planned treatment, and 9785(f) requires the PTP to report, within 20 days, on any change in said treatment plan. Section 9785(g) provides that when the physician determines that the employee's condition is permanent and stationary, the physician shall report any findings concerning the existence and extent of permanent impairment and limitations and any need for continuing medical care resulting from the injury."

Section 9785(i) requires payment under the OMFS. Thus, the Official Medical Fee Schedule covers mainly the Doctor’s First Report of Work Injury, the PR-2's, & the PR-4.
 
Click here for full text of Title 8, California Code of Regulations, §9785
 
Requirements of a “Comprehensive Medical-Legal Evaluation" [CME]

However, Sections 9793 and 9794 provide a method for reimbursing the treating physician at rates which are 100% of the Medical Legal Fee Schedule when the physician performs a Comprehensive Medical-Legal Evaluation [CME], Section 9793(c) defines the CME as an evaluation of an injured worker which results in the preparation of a narrative medical report, and is performed by the PTP for the purpose of proving or disproving a "contested claim" and which meets the requirements of Section 9793(g)(1) through (5).

Section 9795(b) defines a “contested claim”, which includes, under Section 9793(b)(4), the situation in which the claims administrator has accepted liability for a claim and a "disputed medical fact" exists.

Section 9793(e) defines a "disputed medical fact" as an issue in dispute concerning "(1) the employee’s medical condition, (2) the cause of the employee’s medical condition, (3) treatment of the employee’s medical condition, or (4) the existence, nature, duration or extent of temporary or permanent disability caused by the employee's medical condition.” [My emphasis]. In my view, the issue of permanent disability includes the issue of apportionment.

Thus, the treating physician can avoid the limitations of the Official Medical Fee Schedule for his/her narrative report regarding the employee’s medical treatment or nature and extent of permanent disability if the report qualifies as a CME. In addition to addressing a "disputed medical fact", the report, in order to be payable as a medical-legal expense (i.e., is a CME), must also meet the requirements set forth below.

Section 9793(g) defines a medical-legal expense as including any cost or expense, incurred by or on behalf of any party or parties, for medical reports for the purpose of proving or disproving a contested claim, which also meets the following requirements:
  1. The report is prepared by a physician.
  2. The report is obtained at the request of a party or parties for the purpose of proving/disproving a contested claim and addresses the disputed medical fact(s) specified by the party who requested the CME report.
  3. The report is capable of proving or disproving a disputed medical fact essential to the resolution of a contested claim, considering the substance as well as the form of the report, as required by applicable statutes, regulations, and case law.
  4. The medical-legal exam is performed prior to receipt of notice by the physician, the employee, or the employee's attorney that the disputed medical fact(s) for which the report was requested have been resolved.
 
Click here for full text of Title 8, California Code of Regulations, §9793
 
Section 9794(a)(2) provides that the cost of a CME shall be billed and reimbursed in accordance with the fee schedule set forth in Section 9795. Section 9795 sets the payment rates for medical-legal evaluations performed by AMEs and QMEs. This section now also applies to CMEs. The minimum fee is $625, which is for a report which qualifies as an ML-102. If the report meets the requirements of an ML-103, the fee is $937.50. Section 9795 now includes a specific reference to the issue of the denial or modification of treatment pursuant to Labor Code Section 4610.
 
Click here for full text of Title 8, California Code of Regulations, §9794

For payment rates, click here.
 
Conclusion

The bottom line is that the treating physician issuing a report on disputed medical treatment or disputed permanent disability/apportionment may bill a minimum of $625 for said report, as long as the report is requested by a party, includes an exam, and addresses the disputed medical fact(s) specified by the party. Otherwise, the physician’s fee is limited by the Official Medical Fee Schedule.

In light of the multitude of UR denials of treatment and disputes regarding impairment rating and apportionment, it is far better for the injured worker to have his or her PTP spend, and be paid for, the time necessary to fully describe the reasons for the recommended medical treatment or the basis of the impairment rating and/or apportionment opinion.

The key is that there must be a dispute (i.e., a disputed medical fact), the PTP must receive a request for the CME from a party (the injured worker, injured worker’s attorney, or defendant), and the PTP must perform an exam in connection with the request. If these requirements are met, then the PTP shall be paid for the report in accordance with the medical-legal fee schedule set forth in Section 9795.
 
The PTP shall be paid for the report in accordance with the M/L fee schedule set forth in Section 9795, provided
1) there is a disputed medical fact,
2) the PTP received a request for the CME from the injured worker, injured worker’s attorney, or defendant, and
3) the PTP performed an exam in connection with the request.
 
Samuel R. Swift has been practicing law since 1973. He is co-editor of Med-Legal’s Quick Reference, active on various committees of California Applicants’ Attorneys Association (CAAA) and a frequent panel member at CAAA conventions and seminars.

To contact Samuel Swift:
Samuel R. Swift, Esq.
2102 Almaden Road, Suite 103
San Jose, CA 95125-2104
Tel: 408-723-2102
Fax: 408-723-2141
samswift@ix.netcom.com