By Jonathan Brand
In my law practice, I have worked with the chiropractic community for over twenty years. Needless to say there have been many changes over the years to both the personal injury and the workers’ compensation practice. In recent years, I have noticed a growing number of doctors are not doing as much workers’ compensation as they once did. For some, this is by choice and for many others it is simply because the cases are not coming in the door. In my opinion, the need for doctors of chiropractic to be involved in workers’ compensation is greater than ever. The medical model far too often focuses on pain management by harmful medications. This, in my opinion, increases costs by creating additional harm to the injured worker. Many cases today involve claims of injury to internal organs directly related to harmful medication.
It is time for the chiropractic community to make an effort to be more involved in workers’ compensation. In this article, I will explore the opportunities for chiropractors to make a difference in providing care to injured workers and will focus on what I call the designated doctor rule.
For those of you who may be new to workers’ compensation, I offer some basic background information.
California law (1) requires that injured workers receive “medical treatment that is reasonably required to cure or relieve the injured worker from the effects of his or her injury. . .” When an injured employee files a workers’ compensation claim, his or her primary treating physician (Physician) must provide the insurance company’s claims administrator with various reports:
- the Doctor’s First Report of Occupational Injury or Illness
- any Primary Treating Physician Progress Reports
- the Primary Treating Physician’s Permanent and Stationary Report (2).
In addition, the treating doctor may be called upon to write a comprehensive medical report in response to a request by a party in connection with a dispute in the case (3).
The first report shall be submitted within five days following the patient’s initial examination, and shall include a treatment plan, a list of medications, and list all scheduled future appointments. Next, the Physician is required to submit “Progress Reports” when a patient’s medical condition changes (4). Lastly, when a patient’s condition becomes “permanent and stationary,” the Physician shall submit a final report, whereby the existence and extent of any permanent impairment shall be described for the purpose of determining adequate patient compensation (5).
The “permanent and stationary” report shall be submitted once an employee reaches a point of “maximal medical improvement, meaning his or her condition is stabilized, and unlikely to change substantially in the next year with or without medical treatment (6).” The Physician “shall render opinions on all medical issues necessary to determine eligibility for compensation” and assign a permanent or temporary disability rating where necessary (7).
Claims are disputed by requesting a comprehensive medical evaluation by a Qualified Medical Evaluator (QME) (8). When a dispute arises, a three-member QME panel is assembled, and the parties have 10 days to agree on a QME from the panel. If the parties are unable to reach an agreement, both sides strike one QME, and the remaining QME performs the evaluation and authors the report (8). The resultant QME report is weighted equally to the Physician’s report (9). This final report, whether written by the Physician or a QME, ultimately shapes an employee’s compensation.
In Downey Regional Medical v. W.C.A.B, the defendant contended that the workers’ compensation judge (WCJ) was required to consider the QME’s opinion as more persuasive than the Physician’s opinion because the “random selection process of the QME promoted neutrality and fairness.” Defendant thus argued that the WCJ was obligated to adopt the QME’s conclusion that applicant’s injury was not work-related. The WCJ, however, held that the Labor Code does not require that QME reports are “presumed to be correct,” insisting that medical reports should be weighed with “respect to their power of persuasion.” (10) Therefore, where the Physician’s report is more persuasive than the QME report, it shall be the basis for what an employee is compensated. Thus, it is critically important that my clients’ physicians draft high-quality, persuasive reports; unfortunately, this is not always the case.
Many doctors should not write the final “permanent and stationary” report called for by the Labor Code (7). In some cases the doctor may not have the time to write the report. In other cases they have made the choice to focus on treatment rather than report writing – nothing wrong with that. However, there is plenty wrong with either failing to the write the report or writing it badly. The final report will have a significant impact on the injured workers’ case, including impairment and future medical.
Fortunately, in California, Physicians may designate their report writing duties to other doctors (11). This process provides the treating doctor with the opportunity to help the injured worker without actually writing the report themselves. It also, provides an opportunity for those chiropractors that want to focus on report writing an additional source of business. In my practice, I make a point of communicating with treating doctors about this issue. I am happy to bring doctors together to achieve a better result for my clients. Although, ex-parte (one-sided) communication with physicians on the QME panel is prohibited (12), there is no such prohibition between the attorney and the treating physician.
The legislative and regulatory codes behind the designation option have been extensively amended in the past five years (13). According to Nickelsburg v. W.C.A.B (1991) 54 Cal.3d 288, “It is presumed the legislature is aware of the existence of all relevant statutes when it considers a change or amends others.” Therefore, the legislature leaving undisturbed the designation option in the Labor Code (7) and the California Code of Regulations (2), affirms this tool is a viable option.
Current legislation provides doctors who handle workers’ compensation claims with a useful tool by allowing them to designate their report writing duties to other doctors. If this were not the legislature’s intent, the designation option would have been eradicated in the in the recent amendments. I would strongly suggest that you network with other doctors and attorneys to help facilitate this process. The result will be better reports. In the next article, I will explain more details on the procedural aspects of the designated doctor rule.
- Labor Code § 4600
- Cal. Code Regs., tit 8 § 9785
- Labor Code § 4620
- California Code of Regulations title 8, § 9785 (f)
- Cal. Code Regs., tit 8 § 9785.
- Cal. Code Regs., tit 8, § 9785, subd. (a)(8)
- Labor Code § 4061.5
- Labor Code § 4062.2
- Downey Regional Medical v. W.C.A.B (2010) WL 3494989
- Downey, supra, at 2.
- Labor Code § 4065.1., Cal. Code Regs., tit 8 § 9785.
- Labor Code § 4062.3
- Senate Bill 228, Assembly Bill 227, and Senate Bill 899 have all made substantive changes to said regulations and statutes.
Jonathan Brand graduated from John F. Kennedy Law School in 1986. Mr. Brand founded The Law Offices of Jonathan Brand in 1989 to pursue his interest in personal injury cases. Shortly thereafter the firm was expanded to handle workers’ compensation. Mr. Brand is a frequent lecturer in the chiropractic community and has been a strong advocate for alternative medicine.
Phone: (925) 295-1670 or (800) 974-9090 E-mail Mailbox9@jb-law.com
