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Introductionand

KeynoteArthur Lipper, M.D.

Steve Cattolica

Questions?

During any presentation,text your questions to

(916) 756-4610.

The presenters will makeevery effort to answer

them at the end of eachday.

1

My Perspective

Arthur Lipper, M.D.President

31st Annual CSIMS Mid‐Summer Seminar

San Diego, California

My Perspective

Steve CattolicaDirector of Government Relations



Step-by-StepGuide to Dealingwith Employers,Payers and the

DWCSteven Feinberg, M.D.

Rupali Das, M.D.Steve Wiesner, M.D.

Constantine Gean, M.D.Douglas Benner, M.D.

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Step‐by‐step Guide to Dealing with Employers, Payers and the DWC

PANELISTSDoug Benner, M.D.

Rupali Das, M.D.Constantine Gean, M.D.

Steve Wiesner, M.D.

Steven Feinberg, M.D. ‐Moderator

QUESTIONS?

Please text your questions to916‐742‐7251

The panel will make every effort to answer them.

DoesCA WC MakeYou feel thisway?

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TODAY,We want to show you how

Going Positive can

Get you Results

TODAY,We want to show you how

Going Positive can

Get you Results

Increase Your understanding and

Improve your communication

Increase Your understanding and

Improve your communication

HOW?

in

4 Areas

1. Understanding EBM Getting to Yes with UR

2. DWC Approaches Approaches to ‘Work the system’

3. MMI Process and issues Resolution of cases

4. Reporting and Physician Physician successful reporting

responsibilities

Area for ImprovedUnderstandingArea for ImprovedUnderstanding

Benefit of ImprovedCommunicationBenefit of ImprovedCommunication

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Introduction to “the System”Getting Started

Employer/Payer–Physician Interactions/Communication

• What is the best way to communicate with the payer/employer?

• What are the employer/payer expectations of the treating physician?

• What specific information does the employer/payer need in a report?• Corollary: What is not needed?

• How does a physician get on and stay on or get thrown off an MPN?• What is it that physicians do that cause employer/payer angst?

• Any comments about electronic medical records?

What are the Different Types of Payers / Coverage and How do they Differ?

• Self‐insured (Private & Public)• TPA administered• Self‐administered

• How are they different in terms of the provision of medical care?

• What is excess coverage?

• Other• CIGA (California Insurers Guarantee Association)

• Claims taken over because the original insurer went out of business – Uses TPA• California Self‐Insurers’ Security Fund – (self‐insured version of CIGA)• SIBTF (Subsequent Injuries Benefits Trust Fund) ‐ uses a TPA

• Provide additional benefits under specified circumstances when an employee with a prior (labor disabling) disability suffers a subsequent workplace injury

• UEBTF (Uninsured Employers Benefit Trust Fund) • Claims against employers that did not have work comp coverage

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What is Evidenced Based Medicine (EBM)? What is the MTUS (Medical Treatment Utilization Schedule)?

Evidence‐Based Medicine (EBM) Systematic approach to making clinical decisions

“…the conscientious, explicit and judicious use of current best evidence in making decisions about the care of individual patients.

…means integrating individual clinical expertise with the best available external clinical evidence from systematic research.”

Sackett DL, et al. BMJ. 1996;312:71‐80 http://www.cochrane.org/about‐us/evidence‐based‐health‐care

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6/14/2016 12https://www.acoem.org/uploadedFiles/Public_Affairs/Policies_And_Position_Statements/Guidelines/Library_and_Reference_Material/Choosing%20Wisely.pdfhttp://www.choosingwisely.org/wp‐content/uploads/2015/02/AAOS‐Choosing‐Wisely‐List.pdf

EBM: It’s all about providing the best medical care for patients

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DWC Medical Treatment Utilization Schedule

• Based on the principles of evidence based medicine• Higher Levels of Evidence Promote Better Patient Outcomes

• MTUS describes how to use EBM to provide appropriate treatment

• Providers can provide good clinical care and follow EBM

• The MTUS is presumed to be correct• But can be overcome by a preponderance of scientific medical evidence to show that a variance is required to “cure and relieve” injured workers

• The legal burden of proof is on the physician to justify the medical necessity of any proposed treatment.

• MTUS contains guidance on medical evidence search sequence

http://www.dir.ca.gov/dwc/DWCPropRegs/MTUS_Regulations/RegulationsFinalClean.pdf (§ 9792.25 of Title 8, California Code of Regulations)

MTUS Evidence‐based Decision Protocol

• If the patient’s condition is addressed in the MTUS, follow recommendations

• If you are recommending treatment outside the MTUS (rebutting) use the medical evidence search sequence:

• ACOEM or ODG, most current version

• Other evidence‐based treatment guidelines

• Other studies—use the hierarchy of evidence

MTUS Hierarchy of Evidence

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1aSystematic

review of RCTs, low risk of bias

1b RCTs with low risk of bias

1c One or more RCTs with identified risks of bias

2 Non‐randomized cohort studies that include controls

3 Case‐control studies or historically controlled studies

4 Uncontrolled studies (case studies or case reports)

5 Published expert opinion

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Providing Optimal Medical Care

• EBM is good for patients—use it, starting with the MTUS• Don’t cut and paste guidelines—provide detail appropriate to clinical condition

• Each evaluation is unique—don’t cut & paste from prior visit

• Document, document, document• Change in condition, clinical progress or deterioration, ability to function in life & work, comorbidities that may impact recovery

• Justify your medical treatment decision: why for this patient at this point in time?

• Cite MTUS or other guidelines/literature as necessary

• Communicate • Be proactive—communicate with the claims examiner

• Be available—for peer review calls

• Consider appeal to the claims examiner if treatment is denied (outside of IMR)

Getting to Yes with the MTUS• What is the best way for the physician to maximize use of the MTUS?

• What should be included with an RFA to expedite a quick approval by UR?

• What all are the primary reasons why an RFA results of the denial?

• What is the best way for the treating physician to avoid UR & IMR denials?

• Once a denial is received, what is the best next step for the treating physician?

DWC ApproachesThe System and How it Works

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What can the DWC do for the Treating Physician?

• Physicians’ Guide to Medical Practice in the California Workers’ Compensation System – 4th Edition*• Parties to the System

• Benefits and Payments to Employees

• Reports and Timelines in the System

• Evidence‐Based Medicine and the MTUS

• Utilization Review and IMR

• Physician Payment and the OMFS

http://www.dir.ca.gov/dwc/MedicalUnit/toc.pdf

DWC Resources for the Treating Physician

• Physician’s Guide to Medical Practice in the California Workers’ Compensation System – 4th Edition*• Parties to the System• Benefits and Payments to Employees• Reports and Timelines in the System• Evidence‐Based Medicine and the MTUS• Utilization Review and IMR• Physician Payment and the OMFShttp://www.dir.ca.gov/dwc/MedicalUnit/toc.pdf

• Watch for upcoming web‐based training with free CME• MTUS, Opioids, Chronic Pain

Reporting “Bad Behavior”

Claims administrators, DWC Audit Unit: https://www.dir.ca.gov/dwc/audit.html

Utilization review, DWC Medical Unit: https://www.dir.ca.gov/dwc/UR_Main.htm

QMEs, DWC MU: https://www.dir.ca.gov/dwc/MedicalUnit/QME_page.html

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What is the California Medical Board position regarding the UR physician

practicing medicine?

• MBC: “the making of a decision regarding the medical necessity or appropriateness, for an individual patient, of any treatment or other medical service, constant is the practice of medicine”

• “medical’s necessity” means medical treatment that is reasonably required to cure her or relieve the injured employee of the effects of his or her injury…” LC 4610.5(c)(2)

Complaints Involving UR Decisions

• Where the complaint alleges that the UR physician’s opinion resulted in the wrong full delay, modification, denial or granting of treatment, the MBC Central Complaint Unit treats this is a quality of care case

• Records obtained and case reviewed by a MBC medical consultant

• If medical consultant determines that further investigation is required, the case is referred to the MBC Health Quality Investigation Unit and the Atty. Gen.’s Office

• MBC has jurisdiction over known California license physicians determining medical necessity but not over whether benefits will be provided

Impediments to MBC WC Oversight

• An expert reviewer does not have to be licensed in California• IMR physician reviewer name unknown

• WC Medical Dir. must be CA licensed and is responsible for all decisions made in the UR process

• Recommendations of MBC Senior Staff Counsel, Kerrie Webb (10/29/15)• Support legislative changes to require UR/IMR physicians:

• To be license in California;• To be actively practicing;• To have similar board certification and/or training as the treating physician; and• To identify themselves in their reports.

• MBC Newsletter Spring 2016: Reminder: Utilization Review Is the Practice of Medicine http://www.mbc.ca.gov/Publications/Newsletters/newsletter_2016_04.pdf

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MMI Process and issuesThe Complexities of Case Closure

What Triggers Case Closure for the PTP?

• Release from care/discharge

• P&S / MMI status

MMI Determination• State of California CCR9785(a)(8)

• “Permanent and stationary status is the point when the employee has reached Maximal Medical Improvement, meaning his or her condition is well stabilized, and unlikely to change substantially in the next year with or without medical treatment.”

• AMA Guides to the Evaluation of Permanent Impairment, 5th edition• Maximum medical improvement refers to a date from which further recovery or deterioration is not anticipated, although over time there may be some expected change. p 19.

• A condition or state that is well stabilized and unlikely to change substantially in the next year, with or without medical treatment. Over time, there may be some change; however, further recovery or deterioration is not anticipated. p.601

• Sound familiar?

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MMI Determination

• When the patient’s rate of improvement becomes too slow to measure and all reasonable, evidence‐based treatment modalities have been employed, it usually is an indication that MMI has been reached.

• If the passage of time and the patient’s self‐management are the only factors expected to improve the disability, it should be regarded as MMI.

• MMI represents the point at which primary responsibility shifts from the physician to the patient

Reporting and Physician responsibilities

What are Physician's Responsibilities for Oversight?

What are Physician's Responsibilities for Oversight?• Physician or Psychological Assistants, Nurse Practitioners

• Supervising physician must review treatment and sign report

• Treatment is responsibility of physician

• Physician Assistants• Physicians may supervise only two PAs at any moment

• Must be in same facility or immediately available by e‐communications

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Is there a way for the PTP to get paid for reviewing medical records?

• Non Face‐to‐Face ServicesCarrier Requested Record Review & Report

• Effective January 1, 2014, the CA workers’ compensation fee schedule no longer reimburses non‐face‐to‐face services. However, when the service is specifically requested by the carrier, arrangements can be made to enable billing and payment.

• Issue: The physician has had a previous encounter with a patient and the carrier has requested a record review:

• Request and receive a written authorization. • Explain how the service will be billed, as noted in codes and description. • Agree on payment amount with carrier/claims administrator and receive authorization in writing.

• Physician to document the service, including time spent performing the record review

CODING: Non Face‐to‐Face ServicesCarrier Requested Record Review & Reporthttps://www.supercoder.com/my‐ask‐an‐expert/topic/99358‐1#sthash.br99XsEN.dpuf

• For the report, select

• For the time spent, select the following from the preference list:

CODE DESCRIPTION KP PRICE

99080ZBM CONSULTATION REPORT REQUESTED BY WCAB OR ADMINISTRATIVE DIRECTOR, EA PAGE $41 PER PAGE

CODE DESCRIPTION KP PRICE

99358B PROLNG E/M SVC BEFORE&/AFTER DIR PT CARE 1ST HR $188

99359B PROLNG E/M BEFORE&/AFTER DIR CARE EA 30 MINUTES $137 PER UNIT

What are things that treating physicians do that are time‐consuming but unnecessary?

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When is it legitimate for the treating physician to provide a medical legal report?

• Medical‐legal evaluators are QMEs and AMEs

• Medical‐legal evaluations are performed when disputes arise over• compensability

• existence and extent of permanent disability

• future medical treatment

• P&S status

• Medical‐legal reports should be prepared only when requested by the claims administrator to ensure that:

• The reports are admissible in court

• Physicians are compensated for the report preparation

How often should an injured worker be seen for follow‐up visits ‐ particularly in chronic cases where

there are no major changes taking place?• It’s all about FUNCTION!

• What is the role for “functional maintenance”?• What should the role be?

• Chapter 4.5. Division of Workers' CompensationSubchapter 1. Administrative Director ‐ Administrative RulesArticle 5.5.2. Medical treatment utilization schedule

• http://www.dir.ca.gov/serp.html?q=functional+improvement&cx=001779225245372747843%3Ahq74utyoxui&cof=FORID%3A10&ie=UTF‐8

• (e) “Functional improvement” means either a clinically significant improvement in activities of daily living or a reduction in work restrictions as measured during the history and physical exam, performed and documented as part of the medical evaluation and treatment; and a reduction in the dependency on continued medical treatment

Can the PTP provide services via telemedicine (Skype, FaceTime, etc.) and get reimbursed?

• The CA DWC has not adopted rules or fees for telemedicine.

• Services would need to pre‐authorized if payment is expected.

• Services like remote reading of imaging by radiologist are usually paid by Bill Review.

• CMS has ground rules for the Original (fee for service) Medicare population that MIGHT be the basis of adoption of fees in the future or not?

• These rules limit the services to patients who are in a remote or rural are and are physically located in a facility or physician office. Audio and video telecommunications must be used.

• Only Physicians, NPs, PAs, Nurse midwives, Clinical nurse specialists, and certified nurse anesthetists can bill for these remote services.

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So What has our new understanding given us?

How to get to Yes with UR

How to ‘Work the system’

How to achieve resolution of cases

How to successfully report

Questions & Discussion

NOTES

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Transition fromDinosaur to

DynamoSteven Feinberg, M.D.Linda Cochiarella, M.D.Edward Cremata, D.C.

Joshua Kirz, Ph.D.Sean King, Esq.

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From Dinosaur to DynamoUpdating Medical Legal Report Writing Skills

PANELISTS

Linda Cocchiarella, M.D.Ed Cremata, D.C.Joshua Kirz, Ph.D.Shawn King, Esq.

Steven Feinberg, M.D. ‐Moderator

QUESTIONS?

Please text your questions to

916‐742‐7251


From Dinosaur to DynamoUpdating Medical Legal Report Writing Skills

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What are we Going to Cover?

• QME/AME Report Writing

• Rules of Engagement

• Gaining & Maintaining QME / AME referrals & AME Status

• Specialty exam uniqueness

• Substantial Medical Evidence

• Almaraz Guzman analysis issues

• Apportionment

• What does that mean and how should the QME/AME respond to…?

• Sex/Gender/Cultural bias issues/concerns

Is There a “Best” Format for a QME or AME?

• What are the components of a quality AME/QME report?• How is such a report best organized?• What are the “Rules of Engagement” for a QME or AME?• Blackledge vs. Bank of America, 75 Cal. Comp. Cases 613

EC JK LC

The Quality of Written Reports• Follow suggested format

• Organized and easy to find subjects

• Substantial Medical Evidence

• Include only necessary information/paragraphs

• Use legal and medical rationale to meet Med/Legal needs

• All opinions require sufficient, logical support (how and why)

• No speculation – all opinions but reasoned and supported

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Rule of Engagement

4628. (a) Except as provided in subdivision (c), no person, other than the physician who signs the medical‐legal report, except a nurse performing those functions routinely performed by a nurse, such as taking blood pressure, shall examine the injured employee or participate in the nonclerical preparation of the report, including all of the following: (1) Taking a complete history. (2) Reviewing and summarizing prior medical records. (3) Composing and drafting the conclusions of the report.

What are the most common medical and technical errors that cause a

medical legal report to be discarded?

SK + all

Gaining & Maintaining QME / AME referrals & AME Status

How does one get chosen as the QME or AME?

How does on Maintain preferred consideration?

SF + all

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What is Unique about a Psychiatric versus an Internal Medicine versus a

Musculoskeletal / Neurological QME/AME?

EC JK LC SF

A medical legal report must include opinions that meet the standard of “Substantial Medical Evidence.” What does that mean?

SK EC

Under what circumstances should an Almaraz Guzman analysis be provided?

What is meant by the term “the most accurate impairment rating?”

SF SK + all

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Regarding Apportionment, what is the proper way to apportion and how do you best explain why you did so?

LC SK + all

Explain AOE/COEAOE/COE (Arising out of and occurring in the course of employment)

SK + all

Explain exactly what is meant by Ex Parte Communication.

SK + all

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What is Causation of Injury versus Causation of Disability?

JK SK

What are the criteria for deeming an injured worker permanent and stationary & at maximal medical improvement?

All

When deposed or when responding to a letter requesting a supplemental report, under what circumstances should the doctor change his or her opinion?

All

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Should the QME or AME address the injured worker’s Medical Care needs?

EC JK LC

I see some doctors submitting charges for Research, when is this appropriate?

EC + all

Is the AME or QME allowed to order Tests without getting authorization?

EC SK + all

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Discuss issues surrounding Charges and Payments for QMEs and AMEs

SK

What should the AME or QME do if the injured worker brings in Medical Records or Imaging Studies?

SK + all

What should the AME or QME do if the injured worker is hostile or belligerent?

All

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What should the AME or QME do if the injured worker expresses suicidal ideation?

JK

What should be AME or QME do of the injured worker is ill or clearly needs

medical attention?

EC LC + all

If the injured worker is late for the AME or QME, at what point can the physician decide to cancel the appointment?

How long does the IW have to wait for the physician?

What do you do if an interpreter is needed but not scheduled?

All

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What do you do if there is missing medical information that is needed to

complete the report?

SK + all

What are the sex/gender/cultural bias concerns in the CA WC system?

LC

Questions?


(916) 756-4610.



NOTES

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Lunch ‘n’ Learn(Legislative

Update)Carlyle Brakensiek, J.D.

Stephen Cattolica

1

Legislative Update

Carl Brakensiek, MBA, JD

Steve Cattolica



BASIC PRINCIPLES

Provide the absolute best care possible – do whatever it takes

Maintain the viability of your practice so that you can succeed

The Latest From Sacramento and Oakland

LegislationRegulationsLitigationAudits and OversightSpecial announcement

2

Key Legislation

AB 2086 (Cooley & Mathis) rerun of AB 1542

Amends Labor Code § 139.2 regarding Neuro‐Psychologists and Board recognition of other QME sub‐specialties

Minor tweaks to address DIR’s objections

Bill status: Senate Appropriations Committee

Key Legislation

AB 1124 (Perea) Workers’ Compensation Formulary

SB 1160 (Mendoza) Certification of UR programs

AB 2503 (Obernolte) UR timeframes, work flows & responsibilities

SB 563 (Pan) Incentives paid to UR physicians

AB 2883 (Asm. Ins) Feasibility of paperless RFA process

Other Bills of Interest

AB 1643 (Gonzalez) Gender bias within the AMA Guides

AB 2407 (Chavez) Require pre‐surg. consult

AB 2230 (Chu) Injured worker free choice of interpreter

AB 1244 (Gray) AD to suspend a physician upon notice of a

conviction for fraud or abuse of the MediCal program

SB 482 (Para) Mandatory use of CURES

3

Administrative Regulations

What is the relationship between legislation and regulation?

Chronic Pain Guidelines

Opioid Prescription Guidelines

Workers’ Compensation ‐MTUS Formulary

MBC Schedule II and Schedule III Prescribing Guidelines

CDC Opioid Prescribing Guidelines

Dueling Presumptions and the Hierarchy of Evidence

Proposals on the Horizon….

Interpreter Fee Schedule

Proposal ‐ Send EOR to Injured Worker

Electronic Reporting for IMR, Medical Records

May 9, 1998 – Board adopted a resolution declaring, among other things:

“The making of a decision regarding the medical necessity or appropriateness, for an individual patient, of any treatment or other medical service, constitutes the practice of medicine”

During the April 25, 2013, Quarterly Board Meeting, the Medical Board reaffirmed that UR is the practice of medicine

MBC Position on UR

4

Labor Code Section 4610 (d)

UR medical directors are responsible for their program

8CCR Section 9792.6 (m) The Medical Director is responsible for all decisions made in

the UR process

Therefore, the MBC would support legislation that requires UR physicians to: Be licensed in California;

Be actively practicing;

Have similar board certification and/or training as the treating physician; and,

Identify themselves in their reports

MBC Position on UR

King v. CompPartners

4th DCA gives worker second chance at medical malpractice against a UR physician

California Supreme Court will review the case; defense given until June 15 to file opening briefs

What difference does it make?

Litigation

Angelotti v. Baker – writ of certiorari denied

Stevens v. State Fund – confirmed validity of IMR process

Ramirez v. WCAB – followed Stevens

5

Regulatory Compliance

On‐the‐Job Training is not enough and meaningful feedback is often non‐existent until something goes wrong

The DWC actively investigates complaints concerning QME and AME reports….

And they look for non‐compliance

Quality/Substantial Medical Evidence

Time frames for delivery

Billing

Substantial Medical Evidence

“. . . such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

Braewood v. WCAB (1983) 48 CCC 566

“[a] medical report which lacks a relevant factual basis cannot rise to a higher level than its own inadequate premises” Zemke v. WCAB (1968) 33 CCC 358

“. . . [m]edical reports and opinions are not substantial evidence if they are . . . based . . . on inadequate histories” Hegglin v. WCAB (1971) 36 CCC 93

“Like a house built on sand, [an] expert’s opinion is no better than the facts on which it is based”

People v. Jones (2013) 57 Cal.4th 899, 951

SWAG (scientific wild ass guess – Listed in Glossary of

LexisNexis Labor Code ‐ See Labor Code § 4663 & EBM)

6

Regulatory Compliance

Can you depend on your staff to take the heat?

No – DWC is clear…this is your practice

Legal fees are generally in five figures

…Even if you win

What’s Actually Happening

RAND – studying written reports by treating physicians, QME and AME reports

RAND data show a marked increase in the number of time‐based evaluations

Causes?

AMA Guides

SB 863 Changes to Rules of Apportionment

Missing or late records


Maintenance of Certification (MOC)

Not‐yet‐proven‐effective, multi‐million dollar additional training program that some ABMS Boards have adopted as adjunct to maintaining board certification

Some hospital systems (i.e., Santa Clara, CA) have adopted MOC to gain and maintain hospital privileges

Some health insurers have adopted MOC as condition for contracting or maintaining network membership

7


Form 10133.36 – “Physician’s Return to Work & Voucher Report”

Mandatory form to be filled out by treating and evaluating physicians when I/W is declared P & S. Triggers eligibility for retraining voucher and eligibility for Labor Code § 139.48 “make up fund”

Injured workers who are declared P & S are being ripped off by rehabilitation and “retraining providers”

Worth $12,000 to injured worker

New DWC Fraud and Abuse Investigations

False §4903.8(d) lien declarations

Illegal referrals in violation of §§139.3 and 139.32

Unnecessary/excessive diagnostic tests in medical‐legal exams

Excessive in‐office dispensing

Payment/receipt of kickbacks for referrals and business leads

Med‐legal reports by PTPs prior to filing of DWC‐1

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SpecialtyBreakout

(Mental Health)David Sones, M.D.

Vladimir Bokarius, M.D.Robert Larsen, M.D.

Claude Munday, Ph.D.Robert Rassp, Esq.

WCJ Mark Romano, Esq.

June 20, 2015

1

Mental Health Breakout

David Sones, M.D. (moderator)

Robert Larsen, M.D., M.P.H.

Valdimir Bukarius, M.D.

Claude Munday, Ph.D.

Robert Raasp, Esq.

Hon. WCJ Mark Romano


Sand Diego, California

Robert C. Larsen, M.D., M.P.H.

CSIMS 2016 Mid Summer Seminar

Causation ‐ Causality The act of causing or producing an effect.

The relation of cause and effect.

The principle that everything has an effect.

June 20, 2015

2

Injury A (physical) harm or damage.

A wrongful action or treatment.

L.C.3208 “Injury” includes any injury or disease arising out of employment.

L.C. 3208.1 “Specific injury” One incident/exposure causing disability &/or need for treatment.

“Cumulative injury” Resulting from repetitive mentally, physically traumatic events.

June 20, 2015

3

L.C. 3208.3Compensable Psychiatric Injuries

6 months employment (typically) required.

Predominant cause threshold applies.

Acts of violence: substantial cause threshold applies.

Exclusion for lawful personnel actions.

Claims after 1/1/2013: Requires catastrophic injury for increase in p.d. from psychiatric condition.

Causation Arenas Biologic/genetic

Psychological/emotional

Environmental/social/cultural/spiritual/beliefs

Case 1 45 y.o. male automotive worker with preexisting, controlled BAD with 40% TBSA 2nd degree burns referred for suspected recurrent major depression.

Biologic/genetic; preexisting pathology

June 20, 2015

4

Case 2 45 y.o. fire captain with 20 year history of exposure to structural fires, mva’s, & gas line explosions. Episodes of panic begin after unsuccessful CPR effort on 6 y.o. girl resembling grandchild. No history of psych rx.

Psychological; C.T. injury

Case 3 35 y.o. Thai female bank teller robbed at gunpoint. PTSD dx’d. Past hx of coerced employment as sex worker in homeland for 6 years.

Cultural/psychological; violent act; preexisting stressors

Case 4 25 y.o. clerk who reports harassment by 2 male coworkers who are fired. She continues working until several months later she’s let go for artificial nails and tardiness due to inability to read an analog clock. Rx record demonstrates primary focus on partner’s imprisonment for her attempted murder & her own conviction for assault of a female family member.

Psychological/social; personnel actions

June 20, 2015

5

Case 5 27 y.o. construction worker who falls off scaffolding with multiple fractures, TBI & depression. Employed 4 months at time of accident. Evaluations by neuro, ortho, neuropsychol, psych.

Biologic/psychological; violent act; catastrophic injury

1. The Labor Code

2. DSM‐5

3. Causation of Injury and Causation of Impairment

4. Establishing WPI Pursuant To The 2005 PDRS

5. Rebutting a GAF‐WPI Rating

6. The WHODAS?

By: Robert G. Rassp, Esq.

[email protected]

The Labor Code

• 3208.3(a): A psychiatric injury shall be compensable if it is a mental disorder which causes disability or need for medical treatment, and it is diagnosed pursuant to procedures promulgated under paragraph 4 of subdivision (j) of Section 139.2 or, until these procedures are promulgated, it is diagnosed using the terminology and criteria of the APA’s Diagnostic and Statistical Manual of Mental Disorders, Third Edition‐Revised, or the terminology and diagnostic criteria of other psychiatric diagnostic manuals generally approved and accepted nationally by practitioners in the field of psychiatric medicine.

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The Labor Code

• Section 139.2(j)(4) [The AD shall adopt regulations concerning the following issues]: “Procedures to be used in determining the compensability of psychiatric injury. The procedures shall be in accordance with Labor Code Section 3208.3 and shall require that the diagnosis of a mental disorder be expressed using the terminology and criteria of the APA’s Diagnostic and Statistical Manual of Mental Disorders, Third Edition‐Revised, or the terminology and diagnostic criteria of other psychiatric diagnostic manuals generally approved and accepted nationally by practitioners in the field of psychiatric medicine.

Title 8 CCR 9726

• Applies to psychiatric injuries occurring prior to 1/1/05 and adopts the eight work function impairments

• Those work function impairments can also be found on page 365 of the AMA Guides, Section 14.4d!

Title 8 CCR 9805

• AD adopts the 2005 PDRS which implicitly includes the GAF‐WPI conversion table. …“and it shall be amended every five years..”

The DSM‐5

• DSM first published in 1884 by the American Psychiatric Association based on institutionalized mental patients

• The DSM‐IV Text Revision was published in 2000

• The DSM‐5 was adopted by the APA on May 10, 2013

• The law is over 10 years behind science. In medicine, 13 years of research is an eternity.

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The DSM‐5

• The purpose of the DSM is to provide “a diagnostic classification system for psychiatrists, other physicians, and other mental health professionals that described the essential features of the full range of mental disorders.”

• “The current DSM‐5 builds on the goal of its predecessors of providing guidelines for diagnoses that can inform treatment and management decisions.” See DSM‐5, page 6.

The DSM‐5

• The DSM‐5 is mostly based on the bio‐medical model of mental disorders and de‐emphasizes psycho‐social aspects of mental disorders.

• The emphasis is on pathology. Why? $$$$$$$$ = medications

• Just like the AMA Guides, we are seeing the politics of medicine

The DSM‐5

• DSM‐5 eliminates Pain Disorders

• DSM‐5 modifies the classification of and diagnostic criteria for PTSD, adjustment disorders, depression, anxiety disorders

• DSM‐5 eliminates Axes I through V of the DSM‐II, III, and IV

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The DSM‐5


• Now included in new category called “Somatic Symptom and Related Disorders”

• Patient has “somatic symptoms associated with significant distress and impairment”

• The diagnosis is made “on the basis of positive symptoms and signs (distressing somatic symptoms plus abnormal thoughts, feelings, and behaviors in response to those symptoms) rather than the absence of a medical explanation for somatic complaints.” See DSM‐5, pg. 309

The DSM‐5


• Objective explanations of chronic pain do not apply here, e.g. failed lumbar syndrome, CRPS

• If there is a somatic component (as opposed to an objective explanation or in addition to one) for chronic pain, then the “somatic component adds severity and complexity to depressive and anxiety disorders and results in higher severity, functional impairment, and even refractoriness to traditional treatments.” See DSM‐5, pg. 310

The DSM‐5

• DSM‐5 on chronic pain: “Some individuals with chronic pain would be appropriately diagnosed as having somatic symptom disorder, with predominant pain. For others, psychological factors affecting other medical conditions or an adjustment disorder would be more appropriate.” See DSM‐5, pg. 813

• DSM‐5 on PTSD: 20% of returning soldiers from Iraq and Afghanistan have this diagnosis. That means 300,000 people.

• PTSD can be diagnosed in the absence of a physical injury

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The DSM‐5

• PTSD and Adjustment Disorders are now under a single category: “Trauma and Stressor Related Disorders” and is no longer under “Depression.”

• “PTSD is associated with high levels of social, occupational, and physical disability, as well as considerable economic costs and high levels of medical utilization... In community and veteran samples, PTSD is associated with poor social and family relationships, absenteeism from work, lower income, and lower educational and occupational success.” See DSM‐5, pp. 278‐279

The DSM‐5

• Depression is now a stand‐alone disorder and does not include Bipolar disorder which also has a separate section

• Generalized Anxiety Disorder, Substance/Medication Induced Anxiety Disorder, and Panic Disorder are all under “Anxiety Disorders” and are no longer under “Depressive Disorders.”

Causation of Injury vs. Causation of Disability

• Two separate analysis.

• In all versions of DSM, once a person has a DSM diagnosis, that diagnosis never goes away, even if the condition is in remission.

• Research indicates that once a person meets the diagnostic criteria for a mental disorder, it will either have active symptoms or will go into remission with a high probability of recurrence during the person’s lifetime.

June 20, 2015

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June 20, 2015

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Which One Best Describes Donald Trump?


Causation of Psychiatric Injury

• Rolda vs. Pitney Bowes, Inc. (2001) 66 Cal. Comp. Cases 241 (WCAB en banc decision)

• Is there a DSM diagnosis?

• Actual events of employment predominantly cause injury

• Are employment events the result of good faith, lawful, non‐discriminatory personnel actions

• Were personnel actions substantial cause of psyche condition?

• See Sonoma State University vs. WCAB (Hunton), (2006) 142 Cal. App.4th 500, 48 Cal. Rptr. 3d 330, 71 Cal. Comp. Cases 1059

• Requires analysis of dual diagnosis if part is work related and other is not

NOTES

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Apportionment of Psychiatric PD

• Escobedo and Gatten cases apply: See Marlene Escobedo vs. Marshalls (2005), 70 Cal. Comp. Cases 604 (WCAB en banc decision); E.L. Yeager Construction vs. WCAB (Gatten) (2006) 145 Cal. App. 4th 922, 52 Cal. Rptr. 3d 133, 71 Cal. Comp. Cases 1687; Benson vs. WCAB (2009) 170 Cal. App. 4th 1535, 74 Cal. Comp. Cases 113.

• What if a case involves orthopedic, psyche, and internal injuries? Can the psyche simply say “I agree with apportionment as stated by Dr. X, the orthopedic AME?”

• Radiator, Inc. vs. WCAB (Kang) 80 Cal. Comp. Cases 79 (2015)

The DSM‐5 and GAF


• The original purpose of these were to evaluate a person’s personal, occupational, and social functioning a the beginning of treatment, during treatment, and upon discharge from treatment.

• The APA got rid of Axis I through V because of its “conceptual lack of clarity (including symptoms, suicide risk, and disability in its descriptors) and questionable psychometrics in routine practice.” See DSM‐5, page 16.

The DSM‐5 and GAF


• Instead, DSM‐5 adopts the WHODAS (World Health Organization Disability Assessment Schedule) which is based on the International Classification of Functioning, Disability and Health (ICF) for use across all of medicine and health care.

• The WHODAS is evidence based, peer reviewed, and accepted internationally for use in determining psychiatric disability

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The DSM‐5 and GAF• DSM‐5 eliminates Axes I through V of the DSM‐II, III, and IV

• The WHODAS has 6 categories: cognition(understanding and communicating); mobility (getting around); self‐care; getting along with people; life activities such as household chores, work, and/or school activities; and participation in society.

• Each of the 36 questions are answered on a scale of 1 to 5 with 1 (no impairment), 2 mild impairment, 3 moderate impairment, 4 severe impairment, 5 extreme or “cannot perform.”

• WHODAS test can be found at www.psychiatry.org/dsm5; follow the links to “Online Assessment Measures” and “Disability Assessments”

The DSM‐5 and GAF


• Can the WHODAS rebut the GAF‐WPI rating of the 2005 PDRS?• Each of 6 domains rate out on an average of 3, then 18/36 = a 50% disability?

• The physician would have to explain how a rating was obtained and within the framework of the WHODAS:

• Step 1: Add the scores within each of 6 category

• Step 2: Add up all six category scores

• Step 3: Convert the summary score into a metric ranging from 0 = no disability to 100 = total disability

• See page 746 of the DSM‐5.

Rebutting the GAF

• The elimination of Axis I through V may make it easier to rebut a GAF‐WPI rating under the 2005 PDRS:

• Method #1: • Evaluate work function impairment from page 365 of the Guides

• Evaluate ADL functioning using Table 1‐2 on page 4 of the Guides

• Use Table 14‐1 to determine impairment classes for work and ADL

• Use Table 13‐8 for overall impairment rating

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Page 365 AMA Guides

Page 365 AMA Guides

Page 365 AMA Guides

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Table 1‐2 AMA Guides



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Table 13‐8 Mental and Behavioral Impairments

• 72% WPI rating results in 100% disability when adjusted for DFEC (Rank 8 DFEC adjustment and GAF score of 27) for DOI before 1/1/13

• 72% WPI rating also results in 100% disability when adjusted by adjustment factor [1.4 x 72] for DOI on or after 1/1/13

• But cause of psychiatric condition cannot be from physical injury unless the injury is “catastrophic.”

• The elimination of Axis I through V may make it easier to rebut a GAF‐WPI rating under the 2005 PDRS:

• Method #2: • Evaluate work function impairment from page 365 of the Guides

• Evaluate ADL functioning using Table 1‐2 on page 4 of the Guides

• Use Table 14‐1 to determine impairment classes for work and ADL

• Use Tables 13‐5 (Clinical Dementia Rating CDR) and 13‐6 Criteria for Rating Impairment Related To Mental Status

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Claude Munday, Ph.D.

Apportionment ‐Go Your Own Way

(but know why)

Vladimir Bokarius, M.D.

Questions

Thank You !

51

SpecialtyBreakout(Internal

Medicine)Nachman Brautbar, M.D.

Arthur Lipper, M.D.

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Internal Medicine Breakout

Arthur Lipper, M.D. (moderator)Nachman Brautbar, M.D.Robert McLaughlin, Esq.



Case Studies

Considerations aboutRating

2

4

QUESTIONS

THANK YOU !

SpecialtyBreakout

(Neuromusculo-skeletal)

Rupali Das, M.D.Steve Wiesner, M.D.Craig Conlon, M.D.

Maureen Miner, M.D.Edward Cremata, D.C.

WCJ Linda Atcherley, Esq.Bret Graham, Esq.

1

Neuromusculoskeletal Breakout

Rupali Das, M.D. Maureen Miner, M.D Steve Wiesner, M.D. Ed Cremata, D.C.Craig Conlon, M.D. Bret Graham, Esq.

WCJ Linda Atcherley, Esq.



Injury, Causation and “Work Relatedness”

Steve Wiesner, MD

Kaiser PermanenteNational Integrated Disability Management Physician Advisor

Assistant Medical DirectorNCAL, Regional Occupational Health Department

6‐Step Causation Analysis:

NIOSH

• What is the diagnosis?• What are the known causes?• Is this patient exposed to known causal factors at

work? Elsewhere?• Is the work exposure sufficient to have caused the

current diagnosis?• Are there other risk factors present?• What’s your conclusion?

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Causation Concepts

• Two primary clinical situations that need to be considered when providing your cause and effect opinion:1. Do you have substantial evidence to2. State with reasonable medical probability that the patient’s

presentation is consistent with the reported mechanism of injury?

• If you don’t have substantial evidence, ask for what you need.o E.g. a job description, review of prior records, additional diagnostic

information, etc.

Substantial Evidence• Is your opinion and medical justification based on

reasonable medical probability? o Do you have clinical/evidence-based justification for you opinion?o Do you have facts to support your opinion?o Your opinion is not speculativeo Substantial evidence is NOT present, if the cause of the patient’s

injury is simply POSSIBLEo It is also NOT required that you have medical certainty

• Be careful if you are providing a causation opinion that is beyond your scope of expertise or practice

Agree or Disagree

• In the DFR, the doctor always should report whether he/she thinks the injury is work-related.oTrueoFalse

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Step‐by‐Step• Is there even an injury?

o Pain, by itself, is NOT an injuryo E.g., Fracture of the radial head is an injury

• What’s the cause of the presentation?o Mechanism of injury: o E.g. Slip and fall is a mechanism of injury

• Is the injury “work-related?” o Not for the PTP to determineo This is a CLAIMS determination

Cause of the Injury• This is a medical determination based on

o History: Mechanism of injury/exposureo Physical examinationo Diagnostic studieso Record review

• This is what Question #21 on the DFR is actually asking:o “Are your findings and diagnosis consistent with

patient’s account of injury or onset of illness?”o It is NOT asking if the presentation is “work related”.

DFR• If the PTP does not have substantial evidence to state

with reasonable medical probability that there is a cause and effect relationship between the patient’s reported mechanism of injury and the findings/presentation, AND the PTP needs additional information to make an opinion, then the following statement may be appropriateo “Information available to me at this time is not sufficient to

determine the cause or causes of the patient’s condition. To make this determination, I need. . .”

o List additional testing and/or records needed to subsequently provide your opinion.

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Roles and ResponsibilitiesDoctor addresses cause and effect relationship

• Defined by science• Defined by documented mechanism of injury• Given the nature and extent of injury, does a fall and

subsequent fracture constitute a plausible cause?

Claims examiner addresses work-relatedness (defined by law)

• Is the person an employee?• Was he/she within the course and scope of employment at

the time of injury?o Is the employer liable?

• Is the employee entitled to WC benefits?

An Example

• The patient reports slipping and falling while getting coffee during their lunch break with a subsequent radial neck fracture

o Is the presentation consistent with the reported mechanism of injury, based on your history, physical examination and diagnostic studies?

Is this a Compensable Work Injury?

• In this example, the claims examiner will need to determine if the slip and fall that occurred during the employee’s lunch break was in the course of employment and therefore compensableo Would the answer be different regarding the COE

question, if the patient, on their own, decided to get coffee for his co-workers OR

o If the patient’s manager asked the patient to get coffee for a lunch time department meeting?

• Regardless of the COE decision, the CAUSE of the patient’s injury would be consistent with the slip and fall

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Summary

• It is ultimately the claims examiner’s job to assemble and evaluate the medical, employment-related and regulatory elements to determine if the employer is responsible for paying WC benefits.

• Therefore, the PTP should NOT and does NOT make the decision if the patient’s presentation is “work related”

Closing Comments

• An event is not an injury. • A complaint is not a diagnosis.• What makes an event or a complaint rise to

the level of an injury has largely to do with the need for medical treatment.

• Cause and work-relatedness are not the same thing.

Causation‐related Resources

• State of California Medical Treatment Utilization Schedule (MTUS)

o https://www.dir.ca.gov/dwc/mtus/mtus_regulationsguidelines.html

• ACOEM Practice Guidelines, Chapter 4, Work-Relatedness

• AMA Guides to the Evaluation of Disease and Injury Causation, 2nd edition. Melhorn, JM, Talmage JB, et.al.

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Does computer use cause injury?

One of the first things taught in introductory statistics is that correlation is not causation. It is also one of the first things forgotten.

-Thomas Sowell

“

“

Where are these injuries?

The neck? The forearm?

What about here at the carpal tunnel?

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Early Reviews

• NIOSH: Bernard 1997o Evidence for CTS associated w/ repetitive work.o Evidence for CTS associated w/ forceful work.o Evidence for CTS associated w/ hand/wrist vibration.o Strong evidence for CTS associated w/ force plus

repetition.o Insufficient evidence for CTS w/ extreme postures.

• CONCLUSION:o Therefore, given that computer use is repetitive,

computer use may be associated with CTS.

Musculoskeletal disorders and workplace factors: a critical review. Bernard BP, et al. 1997. http://stacks.cdc.gov/view/cdc/21745

CTS Risk Factors• Physiologic Observation:

o Increased carpal tunnel pressure is associated with median nerve function.

• Rempel et al.o Wrist postures associated with increased CT

pressure.

• Keir et al. o Mouse use associated with moderate CT pressure

increase.o Other studies suggest typical computer keyboard

postures would have modest increased CT pressure.

Rempel D, et al. Effects of forearm pronation/supination on carpal tunnel pressure. J Hand Surg Am. 1998 Jan; 23(1):38‐42.Keir PJ, et al. Effects of computer mouse design and task on carpal tunnel pressure. Ergonomics. 1999 Oct; 42(10):1350‐60.

Which one meets these criteria?

Light rapid finger motion? Forceful grasping with vibration?

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CTS Risk Factors

Prospective Studies

o Gerr et al. 2002. • Positive association between computer use and

various musculoskeletal disorders.• This study suggested that computer use was a risk

factor for development of CTS.

o Andersen et al. 2003.• No association between keyboard use and CTS.• But association found w/ mouse use of > 20

hrs/week

Gerr F, et al. A prospective study of computer users: 1. Study design and incidence of musculoskeletal symptoms and disorders. Am J Ind Med. 2002; 41(4):221‐35.Andersen JH, et al. Computer use and carpal tunnel syndrome; a 1‐year follow up study. JAMA. 2003; 289:2963‐9.

Modern Reviews• Thomsen et al., 2008.

o 3 studies that had possible misclassification showed an association between computer use and CTS.

o 3 studies found Risk levels < 1.• Protective against CTS or no association!

• van Rijn, et al., 2009.o “Jobs with the highest risk of CTS included work in the

meat- and fish-processing industry, forestry work with chain saws, and electronic assembly work (OR = 76.5, 21.3, and 11.4, respectively).”

o “The occurrence of CTS was associated with high levels of hand-arm vibration, prolonged work with a flexed or extended wrist, high requirements for hand force, high repetitiveness, and their combination.”

o “Contradictory findings were reported for associations between computer work and CTS”.

Thomsen JF, et al. Carpal tunnel syndrome and the use of computer mouse and keyboard: a systematic review. BMC Musculoskelet Disor. 2008; 9:134.van Rijn RM, et al. Association between work‐related factors and the carpal tunnel syndrome‐ a systematic review. Scand J Work Environ Health. 2009; 35:19‐36.

Modern Reviews• Andersen et al. 2011

o CTS:• 3 reviews focusing specifically on carpal tunnel syndrome • Consistently concluded that epidemiological evidence for

computer use and the occurrence of CTS is insufficient.

o Upper extremity musculoskeletal disorders: • When considering prospective studies and accepting the

inclusion of clinical criteria incorporated in some of the reviews, the evidence seems moderate or even limited for an association between computer use and UEMSDs.

Andersen JH, et al. Risk Factors for Neck and Upper Extremity Disorders among Computers Users and the Effect of Interventions: An Overview of Systematic Reviews. PLoS. 2011. http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0019691

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Biomechanical Study• Harris-Adamson et al. 2015

o CTS risk factors• Peak hand force• Forceful repetition rate• Percent time in forceful hand exertions

o NOT CTS risk factors: • Total hand repetition • Percent duration of hand repetition• Wrist postures

Harris‐Adamson C, et al. Biomechanical Factors for carpal tunnel syndrome: A pooled study of 2474 workers. Occup Environ Med. 2015; 72(1): 33‐41.

The final word?• Mediouni et al. 2015 (double study, both

prospective)

o The Cosali cohort (France): • CTS diagnosis based on symptoms and exam c/w CTS.

o PrediCTS cohort (U.S.): • New hires with baseline history, physical and nerve conduction

test. Then follow up history, physical and NCT.

o In both studies: • Jobs with the highest computer use had a protective odds ratio in

comparison to other jobs.

o Cosali cohort OR=0.39 o Predi CTS cohort OR=0.16

Mediouni Z, et al. Carpal tunnel syndrome and computer exposure at work in two large complementary cohorts. BMJ Open. 2015. http://bmjopen.bmj.com/

Take‐home messages on Causation

• Initial assessment and documentation is crucial to accurate attribution

• Causation only stated with reasonable medical probability

o Not medical certainty nor medical possibility.

• AND (despite the conventional wisdom to the contrary), research to date shows:

“Jobs with the highest computer use had a protective (!) odds ratio in comparison to other jobs.”

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CUMULATIVE TRAUMA CTS, CAUSATION,

The REPORT

MAUREEN D. MINER, MDDiplomate, American Board Of Physical Medicine & RehabilitationDiplomate, American Board Of Pain MedicineSubspecialty Board Certified, Spinal Cord MedicineSubspecialty Board Certified, Pain MedicineQualified Medical Evaluator

2016 CSIMS MidSummer Seminar

Definition of CT

“An injury that was caused by repeated events or repeated exposures at work. For example, hurting your wrist doing the same motion over and over or losing your hearing because of constant loud noise”

“If the injury or illness was caused by repeated exposures (a cumulative trauma injury), the date of injury is the date you knew or should have known the injury was caused by work.”

UE Injury Breakdown

Strain62%

Sprain15%

All Other Cumulative Injuries

8%

All Other Specific Injuries, NOC

7%

Inflammation3%

Carpal Tunnel Syndrome

2% Hernia2%

Multiple Injuries Including Both

Phys and Psych1%

Dislocation0%

All Other Occupational Disease Injury, NOC

0%

Nature of Injury 2009-2013

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56% of MSK Injury Cases are Female

Per the California Commission on Health & Safety and Workers Compensation the percentage of women in the workforce is now equalto that of men

Although men’s injury risk decreases as they age, women’s work injury risk increases as they get older

Women ages 25-64 have a 20%-40% higher rate of injury than men

Per the Institute for Women’s Policy Research, the 20 most common occupations for full time women are:

– Secretaries

– Receptionists

– Nurses

– Home Health Aides

– Customer Service Representatives

– Maids/Housekeepers

– Waitresses

– Social Workers

High risk for upper limb injuries, esp. CT

Women in the Workforce: The Effects of CT

ROBERT H. BEVERIDGE, Petitioner, v. INDUSTRIALACCIDENT COMMISSION et al., Respondents (1959), 24 Cal. Comp. Cases 274

Justice Trobriner:

“We think the proposition irrefutable that while a succession of slight injuries in the course of employment may not in themselves be disabling, their cumulative effect in work effort may become a destructive force. The fact that a single but slight work strain may not be disabling does not destroy its causative effect, if in combination with other such strains, it produces a subsequent disability. The single strand, entwined with others, makes up the rope of causation.

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“The fragmentation of injury, the splintering of symptoms into small pieces, the atomization of pain into minor twinges, the piecemeal contribution of work-effort to final collapse, does not negate injury. The injury is still there, even if manifested in disintegrated rather than in total, single impact. In reality the only moment when such injury can be visualized as taking compensative form is the date of last exposure, when the cumulative effect causes disability.”

Burden of Proof

Injured worker must produce substantial evidence that the employment resulted in cumulative trauma injuryOnly exceptions are the presumptions for peace officers and other protected classes of employees for specified conditions (see Labor Code §§3212-3213.)– In these cases, once the diagnosis has been established,

the burden shifts to the employer to show that conditions of employment did not cause the injury/disease.

Cumulative Trauma

CT is a bona fide medical disorder.

CT has been described and treated for decades

CT can occur up to and until the DOI, and/or after the DOI

Typically identified with a date: e.g. “CT to 12/11/13”

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CT according to OSHA

Primarily affect the back, hand, wrist, forearm

Affected by age, stress, and physical conditioning

Caused by ergonomic stressors– Repetitive motion

– Vibration

– Excessive force

– Awkward position

Industrial Carpal Tunnel Syndrome

Traumatic CTS

CTS via Cumulative Trauma

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Traumatic CTS

ABSTRACT:

The carpal tunnel syndrome is a frequent illness with several etiological factors. Its appearance after trauma is rare. In a retrospective study its incidence and the trauma pattern were analyzed. From 1.1.95 to 31.12.99 144 median nerve decompression procedures for carpal tunnel syndrome were performed in 114 patients. Twelve patients (10.5%) had suffered a trauma in the recent or more distant past. There were six distal radius fractures, three metacarpal fractures, one finger fracture, one humeral shaft fracture and one distal avulsion of the biceps tendon. In eight patients the symptoms appeared 1-3 months after trauma, in four patients there was an interval of several years. In all twelve patients electroneurography revealed pathological parameters on the symptomatic side, but in ten patients the contralateral side was also affected although there were no symptoms. According to the criteria given by Assmus and Frobenius [1], five patients showed an obvious and three patients a possible posttraumatic carpal tunnel syndrome. In four patients a distinct relation to the trauma could not be proven.

CONCLUSION: The carpal tunnel syndrome after trauma is rare. Given the fact that the contralateral side in these patients was affected as well, a predisposition--due to a narrow carpal tunnel--is very likely. Its manifestation might be triggered by a pressure increase in the carpal tunnel as result of the trauma

PMID: 11883341 [PubMed - indexed for MEDLINE]

Traumatic CTS

Traumatic carpal tunnel syndrome is believed to be caused by shear stress on the wrist that does direct damage to the median nerve or damage to ligaments and tendons that surround the median nerve.

Few symptoms in the beginning but Wallerian degeneration occurs or as the tendons and ligaments heal they form scar tissue that impinges on the nerve

Results in the classic symptoms of numbness, pain, paresthesias, and weakness of the part of the hand innervated by the median nerve.

Is the Injury Work-Related (AOE/COE)?

An injured worker has the burden of proof to show by a preponderance of the evidence that an injury is work related.

MSK work activities need not be the sole cause of the injury or even the primary cause.

The question of whether an injury is work related is divided into two parts (Labor Code § 3600):

• Did the injury “arise out of employment” (AOE)?

• Did the injury “occur in the course of employment” (COE)?

http://www.dir.ca.gov/dwc/medicalunit/toc.pdf

15

Analyzing Causation

The physician is asked to indicate whether it is “more likely than not” (in other words, there is at least a 51% likelihood) that the work exposure or incident played a significant role in producing the pathological condition or disability that the physician described. [that is 1% above chance]

Three factors need to be established in order to make a causation determination:

1. What pathological condition(s) (and disability) are present?

2. What relevant work exposures were present?

3. What other causes might produce the disease (i.e., non-industrial exposures)?

Only after all three have been considered can causation be adequately addressed. (Applies to both precipitous injuries and cumulative trauma.)


Causation: Documentation

Therefore, a report should include documentation of the specific nature of the workplace hazard• Exposure

• Duration

• Intensity



Types of Causation

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Causation: Cumulative Injuries

The physician needs to assess causation by weighing various factors, such as the following:

• The kind of exposure involved (activities involving repetitive motion, etc.)

• The level, frequency, and duration of exposure

• The presenting signs or symptoms that are consistent or inconsistent with the occupational exposure and the disease

• The medical literature, including epidemiological or toxicological studies and case reports that indicate that the disease in question is associated with the worker’s exposure or occupation.


CTS: How to evaluate the IW’s job

Query the patient about the physical aspects of the job per his perspective (gripping, grasping, pinching, repetitive fingering/fine manipulation, torqueing, forceful or simple, etc.)

Quantify the tasks based upon the patient’s statements

Deduce the amount of time spent on any one task (how frequently, consistently, etc.)

Determine the duration that the patient has been performing these tasks.

Focus on the connection btw the injured body part(s) and the associated work tasks. Does it make sense?

If the connection is logical/reasonable, probable CTS present

Compare IW’s statements to job description if available

Risk Factors for Carpal Tunnel Syndrome

Obesity

Rheumatoid arthritis

Diabetes

Hypothyroidism

Menopause

Smoking history

Multiple sclerosis

Lupus

Female age

Being between the ages of 40-60

Pregnancy

Being on birth control pills

Renal insufficiency/failure

17

CTS, the PTP, and the PR4

The PTP has a unique vantage point in addressing the connection between work (tasks) and the injury (disability)

Look at the medical evidence available

Do not shy away from declaring Causation

Describe Causation and Apportionment…even if it goes to a QME.

CTS and the QME/AME

Describing Causation is mandatory for submitting a complete report

Take a thorough work history for CTS as described above

Discuss the actual work processes with the injured worker

Know that there may be long latencies involved and no records on the period in which the injured worker was exposed

Attempt to obtain all available records

Address risk factors for CTS

Use available CTS EBM in your analysis

Weigh the medical evidence to a reasonable medical probability (sometimes all you have is the patient’s statements)

Opine on Apportionment

CTS and Causation

The definition of causation in the state of California with 1% contribution beyond chance occurrence.

Ask yourself the question, did the job contribute this 1% to the disability of carpal tunnel syndrome? – If yes, causation is indicated

– if no, causation is not indicated

18

Example: W.M.

W.M. is a 46-year-old female with secretarial administrative skills in a school system who was working as the high school attendant, on the computer 55% to 75% of the time. She worked in her position for two years. She claimed carpal tunnel syndrome on the right dominant side after returning to work from maternity. Just prior to her RTW, this obese female delivered a baby normal vaginal delivery. She came back from maternity leave asymptomatic in her position as stated above.

THE CAUSE AND EFFECT OF CARPAL TUNNEL SYNDROME

Causes, Diagnosis, Treatment,

AMA Guides Ratings

Causes – ACOEM, Table 11‐2

Hypothyriodism

Pregnancy

Edema

Wrist fracture

Rheumatoid Arthritis

Kidney failure

Sex, more common in women due to anatomic variables

Diabetes mellitus

Amyloidosis

19

Effects of CTS – ACOEM, Table 11‐2

Treatment ‐ ACOEM, Table 11‐4

ACOEM – Physical Methods

Thus, surgery should usually be delayed until a definitive diagnosis of CTS is made by history, physical examination, and possibly electrodiagnostic studies. Symptomatic relief from a cortisone/anesthetic injection will facilitate the diagnosis; however, the benefit from these injections is short‐lived.

20

ACOEM ‐ Page 266

TreatmentAdditional Considerations

Acupuncture

Rule out double crush syndrome from cervical root pathology

Extracorporeal Shockwave Treatment (ESWT)

Physiotherapeutic Modalities and Procedures

Mobilization

21

Acupuncture

J Res Med Sci. 2012 Jan; 17(1): 1–7.PMCID: PMC3523426Acupuncture in treatment of carpal tunnel syndrome: A randomized controlled trial studySaeid Khosrawi,1 Alireza Moghtaderi,2 and Shila Haghighat3

CONCLUSIONS:Our findings indicated that the acupuncture can improve the overall subjective symptoms of carpal tunnel syndrome and could be adopted in comprehensive care programs of these patients.

Extracorporeal Shockwave Treatment (ESWT)

Seok H, Kim SH: The effectiveness of extracorporeal shock wave therapy vs. local steroid injection for management of carpal tunnel syndrome: A randomized controlled trial. Am J Phys Med Rehabil 2013;92:327Y334.

Design: The authors carried out a randomized controlled trial comparing one session of ESWT (1000 shots at the maximal tolerable intensity) with one session of CS injection in 36 patients with carpal tunnel syndrome. Outcome measures including nerve conduction studies, a visual analog scale, and the Levine Self assessment Questionnaire were performed at baseline and at 1 and 3 mos. after treatment.

Conclusions: ESWT can be as useful as CS injection for relieving symptoms of carpal tunnel syndrome. Furthermore, in contrast to CS injection, it has the merit of being noninvasive.

CTS ImpairmentACOEM ‐ Page 495

22

Additional Considerations1. Rating by analogy

2. Apportionment to non‐industrial causes if it can be done with “reasonable medical probability”, based on findings at the time of the MMI/P&S

evaluation

3. Consideration for overlap with bilateral conditions

4. Consideration for synergistic or “additive” effects with bilateral conditions [Kite (ADJ6719136)]

23

PANEL DISCUSSION

68

QUESTIONS

THANK YOU !

Questions?


(916) 756-4610.



NOTES

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Case LawUpdate

Pamela Foust, Esq.Linda Atcherley, Esq.David Leonard, Esq.

6/14/2016

1

Case Law Update

•Hon. WCJ Pamela Foust (ret)

•Hon. WCJ Linda Atcherley – San Diego

•David Leonard, Esq.

CSIMS 31stth Annual Mid‐Summer SeminarSan Diego California June 16 – 18, 2016

Questions?


916‐742‐7251


Cases and Summaries are in your syllabus

LexisNexis cases placed in the CSIMS Case Law Update Syllabus are © Copyright 2016, Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved.

Reprinted with permission

6/14/2016

2

Thank You!Mark Your Calendars

CSIMS 32nd AnnualMid‐Summer

SeminarSquaw Creek ResortJune 8 – 11, 2017

CSIMS Case Law Update – June 18, 2016 31st Annual Mid‐Summer Seminar


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I. Substantial Medical Evidence Guerra (Rodas) v. WCAB (2016) 81 CCC 324 Star v. WCAB (Tavares) (2016) 81 CCC 111, unpublished South Coast Framing v. WCAB (Clark) (2015) 80 CCC 489 For the purposes of the causation requirement in workers’ compensation, it is sufficient if the connection between work and the injury be a contributing cause of the injury.

II. Utilization Review (UR)

Lopez v. Warner Brothers, 2015 Cal. Wrk. Comp. P.D. LEXIS 677 A lien for medical treatment was denied where the lien claimant didn’t submit an RFA to the defendant on the proper form and while the defendant had the right to accept a treatment request not submitted on an RFA form, there was no evidence that it ever did so.

Romero – March 2016 – Zalewski, Brass, Lowe Where an RFA requested four items and the defendant sought further information on two of them, the defendant had 14 days to issue the UR denial and was not required to deny the two items for which further information was not requested within 5 days because the timelines apply to the entire RFA and not the individual items requested. Arroyo – January 2016 – Brass, Zalewski, Razo A UR denial was invalid where the reviewer denied a motorized scooter and the RFA had requested repair of the existing scooter because the UR denial must address the type of treatment that was requested in the RFA. Belling v. UPS (also under Medical‐Legal) There was no improper communication between the PQME and applicant’s wife who accompanied him to the evaluation where applicant was unable to speak or write and the wife served the same function as an interpreter. While the defendant was not obligated to conduct UR of treatment requests while the case was denied, it was required to do so as soon as the injury was determined to be compensable. Dallas v. Pan Pacific Petroleum The WCAB found a UR denial to be untimely where the denial was sent to the requesting physician by FAX but was not followed up with a written denial sent by mail within 24 hours.

III. Independent Medical Review (IMR)

Stevens v. WCAB (2015) 80 CCC 1262 IMR is not unconstitutional. (Also discuss Ramirez and Zuniga, pending before the Court of Appeal on the same issue.)



2 | P a g e

Independent Medical Review (cont’d) Gonzalez‐Ornelas v. County of Riverside, 2016 Cal. Wrk. Comp. P.D. LEXIS 151 Applicant’s IMR appeal was granted when the basis for the reviewer’s denial of the treatment was contradicted by the summary of information in the reviewer’s report which was a mistake that did not require expert opinion to establish. Southard v. WCAB Margaris v. WCAB Baker v. WCAB NOTE – These cases are pending before the Court of Appeal Different appellate districts are going to decide the question of whether the time deadline for Maximus to issue an IMR determination is mandatory and thus a late IMR confers jurisdiction on the WCAB to hear the medical necessity dispute, or whether it’s directory in which case a late IMR is still valid.

IV. Medical‐Legal/QMEs Batten v. WCAB (2015) 80 CCC 1256 Neither Labor Code 4605 nor 4061 permits the admission into evidence of a report prepared by an expert who is retained solely for the purpose of rebutting the opinion of the agreed medical expert’s opinion. (Also mention Brower en banc where a treating physician was entitled to be paid for providing rebuttal to the AME.) Belling v. UPS (also under Utilization Review) There was no improper communication between the PQME and applicant’s wife who accompanied him to the evaluation where applicant was unable to speak or write and the wife served the same function as an interpreter. While the defendant was not obligated to conduct UR of treatment requests while the case was denied, it was required to do so as soon as the injury was determined to be compensable. Geiger v. George Geiger, 2015 Cal. Wrk. Comp. P.D. LEXIS 751 There was no improper ex parte communication between applicant’s spouse and the AME when the applicant could not effectively communicate with the doctor. Babakitis v. Pacific Home Works, 2015 Cal. Wrk. Comp. P.D. LEXIS 488 A lien claimant was not entitled to be reimbursed for a report under the Medical‐Legal Fee Schedule where the applicant’s attorney designated the lien claimant as the PTP and requested an initial consultation and report and there were no disputed issues that were addressed by the lien claimant.

Ponce de Mauleon v. Harris Woolf CA Almonds, 2015 Cal. Wrk. Comp. P.D. LEXIS 232 A PTP’s request for diagnostic testing was medical treatment that was subject to UR and not a medical‐legal cost.



3 | P a g e

Medical‐Legal (QMEs) (cont’d) Sanchez v. The Regents of the University of California, 2015 Cal. Wrk. Comp. P.D. LEXIS 145 The defendant was liable for the charges of a PQME in spite of the fact that the case was dismissed when the applicant was convicted of insurance fraud and the report contained a false history. Toro v. Lucky Brand Jeans, 2015 Cal. Wrk. Comp. P.D. LEXIS 270 A medical‐legal evaluator’s claim for reimbursement on his lien was not defeated by the fact that he listed the complexity factors at the end of the report instead of at the beginning as required by regulation. Contra Costa v. WCAB (Dahl) The Ogilvie/LeBoeuf method of rebutting the diminished future earning capacity factor in the rating string requires a showing that the injured worker is not amenable to rehabilitation and is therefore totally disabled as a direct result of the industrial injury.

V. Civil Litigation Electronic Waveform Lab, Inc. v. EK Health Services (2016) 81 CCC 270 With respect to the motion to dismiss filed by SCIF, the U.S. District Court dismissed some of the plaintiff’s causes of action as falling under the exclusive remedy and refused to dismiss others. King v. CompPartners Since a UR doctor has a physician‐patient relationship with the person whose medical records are being reviewed, an injured worker was entitled to sue the UR company and try to prove that since it failed to warn him that immediate withdrawal of addictive drugs would place him at risk for seizures, the UR company was liable for damages

VI. Medical Provider Networks (MPNs)

The Boeing Company v. WCAB (Pasquel) (2015) 80 CCC 1338, writ denied. The WCAB majority found that a doctor was part of the defendant’s MPN and entitled to payment where the applicant was not given notice that the doctor was only authorized to treat at one location and the treatment was provided at a non‐authorized location. A dissenting Commissioner found that the doctor had no standing to seek payment because his MPN contract specifically provider that he could only treat at the authorized location.



4 | P a g e

VII. Liens

Angelotti v. Baker (2015) 80 CCC 672 Chorn v. WCAB (2016) 81 CCC 332 California Lien Professionals Association, Inc. v. DIR (2015) 81 CCC 395, writ denied Constitutional challenges to SB 863 measure including the lien activation fee (Angelotti), lien filing fee and rules concerning assignments (Chorn), failed as well as a claim that the DWC side‐stepped the regulatory process regarding collection of the lien activation fee (CLPA). Angelotti is pending before the U.S. Supreme Court.

Holder v. Troy Christian dba Adventure Limousine, 2015 Cal. Wrk. Comp. P.D. LEXIS 471 The lien claimant was not entitled to fees in excess of the 2004 OMFS based on extraordinary circumstances when that former exception to the fee schedule only applied to pre‐2004 dates of service and the 2004 OMFS was intended to be a maximum fee schedule. Furthermore, the WCAB had no jurisdiction over the claimed fees for services after January 1, 2013 because they were subject to the Independent Bill Review process.

Guerrero – March 2016 – Caplane, Razo, Sweeney Where services were performed before and after July 1, 2013, the 18 month lien statute of limitations applies because the operative date is the last date of service.

VIII. Psychiatric Permanent Disability Exclusion (Labor Code §4660.1

Larsen v. Securitas An injured worker who was struck by a car was not barred from receiving psychiatric permanent disability as a compensable consequence of her 2013 orthopedic injury when the WCAB concluded that the exception for violent acts was not limited to criminal activity but could also include “other acts that are characterized by either strong physical force, extreme or intense force, or are vehemently or passionately threatening.” (Also Dreher v. WCAB)

PrescriptionMedications,Opioids andFormularies

Ken Eichler (ODG)Jaymie Mai, Pharm. D. (State of Washington)

Bret Graham, Esq.Douglas Benner, M.D.

6/14/2016

1

Formularies

•Jaymie Mai, Pharm. D., State of Washington

•Ken Eichler, Director Reg. Initiatives ODG

•Douglas Benner, M.D.

•Bret Graham, Esq.


Questions?


916‐742‐7251


Washington’s Evidence-based Drug FormularyJaymie Mai, Pharm.D.

California Society of Industrial Medicine and Surgery

June 18, 2016

6/14/2016

2

• Industrial insurance may be purchased through L&I or provided by employers through self-insurance.

• L&I administers the 5th largest workers’ compensation program through the State Fund:

– 2.7 million workers

– 174,000 employers across the state

• Approximately 83,000 workers are injured in the state each year

• Medical aid rules (e.g. medical services, payment methods, coverage policies, fee schedules) apply to both self-insured employers and state fund

Workers’ Compensation in Washington

Slide 4

• L&I spent roughly $512 million on medical services in 2015, of which $17.5 million (3.4%) was spent on prescription drugs

• L&I operates a pharmacy point-of-service (POS) system– Direct billing for prescription drugs

– Concurrent screening for potential problems

– Real-time feedback on formulary status

• Approximately 213,000 prescriptions were paid last year

• 94% of statewide pharmacies are participating providers

L&I Pharmacy Facts

Slide 5

• Prescription drug spending was one of the fastest growing components of health care costs

• State’s three largest health care purchasing agencies joined forces for joint pharmacy purchasing in 2002– Dept. of Social & Health Services for Medicaid

– Health Care Authority (HCA) for public employees and

– Dept. of Labor & Industries (L&I) for workers’ compensation

• Agencies began development of the preferred drug list (PDL) by contracting with Oregon Health and Science University (OHSU) to review 12 of the most costly and highly prescribed classes of drugs.

Road to the Formulary

6/14/2016

3

• Senate Bill 6088 (chapter 29 Law of 2003) directed state-purchased health care programs to consolidate prescription drug purchasing:– Pharmacy & Therapeutics (P&T) Committee

– Evidence-based Preferred Drug List (PDL)

– Endorsing Practitioner & Therapeutic Interchange Program (TIP)

• The state contracted with a single pharmacy benefit manager (PBM) to provide various prescription services– HCA accessed full PBM services for public employees

– L&I accessed rebate, “wrap-around” formulary and mail-order services

• Agencies implemented the PDL and formulary on May 1, 2004

Prescription Drug Program (PDP)

• Evidence-based Preferred Drug List (PDL)– >50% of overall drug spending is in PDL classes– OHSU’s Evidence-based Practice Center evaluates the relative

safety, efficacy and effectiveness of drugs within the selected classes

– P&T Committee reviews the report and recommends drugs for inclusion on PDL and therapeutic interchange

– Agencies contract with actuarial firm to determine relative costs of drugs within a class, based on rebate offers

– Therapeutic interchange program (TIP) requires pharmacists to substitute a preferred drug for a non-preferred drug except when DAW from endorsing practitioners or refills of certain classes

– Newly available drugs require authorization or are non-covered until P&T review

Outpatient Drug Formulary

• Non-PDL drug classes or “wrap-around” formulary– Term applies to drug classes which are covered under workers’

compensation benefit, but are not part of the PDL– Rebate vendor (PBM) provides national formulary to complete

remaining “wrap-around” classeso P&T Committee reviews and evaluates drugs for formulary consideration

– Non-preferred drugs require prior authorization from all practitioners

Outpatient Drug Formulary

6/14/2016

4

Review Process for Washington’s PDL

• Annual re-review of each PDL drug class with repeat of cost analysis yearly

• Types of evidence-based re-review– Update of existing class review

o Thorough review of subsequent published evidence on all drugs in the class

o Sufficient for adding/removing drugs from P&T committee’s recommendation

– Scan for existing class review o Summarizes availability of new evidence and identifies new drugs and

indications since last review

o Not sufficient for adding/removing drugs from P&T committee’s recommendation

– Single drug addendum o Reviews for drug not included in existing class

o Sufficient for adding the selected drug to the P&T committee’s recommendation

Re-review Process - PDL

• Rebate vendor provides updates to wrap-around drug classes as applicable

• L&I reviews newly available drugs– Review FDA labeling and published studies for consideration

– Compare with formulary alternatives

– Establish PA criteria as necessary

Re-review Process – Wrap-around

6/14/2016

5

• Non-preferred drugs from the PDL prescribed by an endorsing practitioner don’t need prior authorization (see TIP)

• Worker, pharmacy or prescriber can contact L&I to request authorization for a non-preferred or non-formulary drug– May need to complete a prior authorization form for certain

drugs (e.g. Lyrica®, opioids)

• A formal dispute resolution (protest/appeal) process, but this is rare

Prior Authorization

1. Contact L&I’s Preferred Drug List (PDL) hotline to request authorization– Depending on whether request meets criteria per protocol, staff

will eithero Authorize drug

o Deny coverage and direct caller to formulary alternatives

o Refer call to claims manager/clinical staff

2. Claims manager reviews request for exception

– Review claim file and any new information provided and make a determination or refer for a clinical review

Prior Authorization Process

3. Occupational nurse consultant reviews request – Review claim file and any new information provided

– Apply pharmacy-developed criteria for selected drugs to assist in drug coverage determination

– Make a recommendation or refer for a medication review

4. Pharmacist performs a review focusing on treatments– Review claim file, new information provided, and policy

– May contact prescriber for discussion

– Staff with medical director, refer to medical consultant or recommend IME, depending on circumstances

Prior Authorization Process - continued

6/14/2016

6

• The formulary is updated quarterly, depending on changes with the state’s PDL

• Notice is communicated 30 days in advance via listserv

• Drug Lookup is updated in concert with formulary posting. This tool allows users to quickly check which drugs are covered under workers’ compensation benefit. If a drug is non-preferred or requires prior authorization, users can also view formulary alternative(s)

Formulary Updates and Notice

• Treatment guidelines– Antiepileptic Drugs for Neuropathic Pain

– Opioid Guideline for Work-related Injuries

• Coverage policies– Fentanyl products (e.g. transdermal, spray, lozenge)

– Direct acting antivirals for hepatitis C

• Payment policies– Miscellaneous oral or non-injectable medications administered or

dispensed during office procedures are bundled in the office visit

– Repackaged drugs are non-covered

Additional Utilization Management Tools

• L&I Drugs & Prescriptions:

http://www.lni.wa.gov/ClaimsIns/Providers/TreatingPatients/Presc/default.asp

• L&I Opioid Guideline for Work-related Injuries: www.Opioids.Lni.wa.gov

• L&I Fee Schedule: http://www.lni.wa.gov/apps/FeeSchedules/

• Prescription Drug Program: http://www.rx.wa.gov/

• AMDG Opioid Dosing Guideline: http://www.agencymeddirectors.wa.gov/opioiddosing.asp

More Information

6/14/2016

7

Presentation title

Additional Information

• Participate in Drug Effectiveness and Review Project (DERP) at Oregon Health and Science University to access evidence-based report:– Key questions on comparative effectiveness, safety and special

population of drugs within a class

– Critical evaluation of the evidence including grading the quality of studies and rating the strength of the overall body of evidence

• Pharmaceutical companies can submit dossier on drugs under evaluation

• Opportunity for public comment to draft reports

Evidence-based Review

• 10 members actively practicing in their area of clinical expertise and represent a broad geographic distribution

• Evaluate the relative safety, efficacy and effectiveness of drugs within a drug class and make recommendations to the state on the development of the PDL– Determines which drugs are equally safe and effective, or have

advantages in special populations

– Do not consider cost in recommendation

• Opportunity for public comment

Pharmacy & Therapeutics (P&T) Committee

6/14/2016

8

• Evidence-based list of drugs used by participating state agencies as the basis to purchase drugs within the state-purchased health care program

• Preferred drug – a drug selected by state agencies as recommended by P&T Committee or based on cost

• Non-preferred drug – a drug that wasn’t selected due to inferior safety or efficacy or due to cost and may require prior authorization for coverage or placed on a higher cost tier

Preferred Drug List (PDL)

• List of providers who endorsed the PDL• Pharmacists interchange preferred drug for any non-

preferred drug prescribed by these practitioners unless Rx is:– A refill of an antipsychotic, antidepressant, chemotherapy,

antiretroviral, immunosuppressive or hepatitis C drug or– Signed “dispense as written”

• Pharmacist notifies prescriber of TIP and drug dispensed

Endorsing Practitioner & TIP




KeynoteLuncheon and

AwardsCeremony

William Zachry, Safeway

NOTES

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A Perspective

William Zachry

Corporate Risk Manager

Safeway Stores


CSIMS COURAGE AWARD2016

Santiago Monarrez

CSIMS SERVICE AWARD aka

The Brakensiek Award 2016

Jesse Ceniceros

6/14/2016

2

Mark Your CalendarsCSIMS 32nd

Annual Mid‐Summer

SeminarSquaw Creek

ResortJune 8 – 11

2017

Does ChronicPain Change the

Brain?Arthur Lipper, M.D.

Solomon (Sandy) Perlo, M.D.Nachman Brautbar, M.D.

1

Is a Psychiatric Problem Really a Brain Change?

Solomon (Sandy) Perlo MD., DLFAPA



Questions?


916‐742‐7251

DOES CHRONIC PAIN CHANGE THE BRAIN?

Solomon (Sandy) Perlo MD., DLFAPAUCLA Psychophysiology Research Laboratory

Semel Institute for Neuroscience and Human Behavior

Assistant Clinical Professor

Department of Psychiatry and Biobehavioral Sciences

David Geffen School of Medicine at UCLA

CSIMS Mid-Summer Seminar June 2016:[email protected]

2

What is the Medical Examiner’s “Holy Grail” ofChronic Pain Whole Person Impairment

(CP/WPI)? SB 899: Evidence-Based Measurement

SB 863: Most Accurate Rating

Achieve a Scientific Threshold of 95%

Reliability and Confidence

Stay Within “4 Corners of the Guides?”

CSIMS MID-SUMMER SEMINAR: Meeting the Challenge of Change: JUNE 16-18, 2016 4

II Is the AMA Guides 5th Ed. the “Holy Grail” of CP/WPI?

A Chapter 18 Injury? (IASP) a 3% add-on

A Chapter 13 Injury? Perry Fine MD: “Long-Term

Consequences of Chronic Pain: Mounting Evidence for

Pain as a Neurological Disease and Parallels with Other

Chronic Disease States;” Pain Medicine 2011; 12: 996-1004

A Chapter 14 Injury? A Compensatory Consequence per SB 863

or a Primary Psychiatric InjuryCSIMS MID‐SUMMER SEMINAR: Meeting the

Challenge of Change: JUNE 16‐18, 2016 5

Is a Consensus- Based Definition of CP/WPI Science-Based?

CSIMS MID‐SUMMER SEMINAR: Meeting the Challenge of Change: JUNE 16‐18, 2016

6

3

Jessica Robinson-Papp, MD MS, Mary Catherine George, MM, David Dorfman, PhD, and David M. Simpson, MD

Department of Neurology, Icahn School of Medicine at Mount Sinai, New York, NY


7


8

Objective. Preliminary evidence suggests that chronic pain patients complete pain intensity measures using idiosyncratic methods. Our objective was to understand these methods and how they might impact the psychometric properties of the instruments.

Conclusions. The themes discovered suggest that

patients include sensations and experiences other than

pain intensity in their ratings, experience the rating of

pain as a comparative task, and do not use the scale in a

linear manner. These themes are relevant to

understanding the validity and scale properties of

commonly used pain intensity measures.


9

4


10


11

Orthostatic Stress Testing with the CPAST


12

5

Davydov DM et al.,Psychophysiogy 2012; 49 (Suppl): 99


13


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“…systems involved in the regulation of blood pressure are physiologically linked to systems involved in the regulation of pain.”


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6/14/2016CSIMS MID‐SUMMER SEMINAR: Meeting the JUNE

16‐18, 2016 19


16‐18, 2016 20


21

8


22


16‐18, 2016 23

CSIMS MID‐SUMMER SEMINAR: Meeting the Challenge of Change: JUNE 16‐18 2016

24

9


16‐18, 2016 25


26


16‐18, 2016 27

10


16‐18, 2016 28


16‐18, 2016 29

CHRONIC PAIN AUTONOMIC STRESS TEST (CPAST)

[Davydov & Perlo 2015; Perlo & Davydov 2016]

CPAST: Measures Dysautonomia in response

to Orthostatic Stress

CPAST: Measures CVR = (HR) + (BP) / Unit

Time in response to Orthostatic Stress

Measurement of CVR Measurement of

SABRA


30

11

What Makes Chronic Pain A Primary Psychiatric Injury?


31

L. C. §3208.3

Questions

Thank You !

32

ApportionmentRaymond Correio, Esq.

Robert Rassp, Esq.

6/14/2016

1

APPORTIONMENT

Ray Correio, Esq.

Robert Rassp, Esq.


Rating is the Hardest Part

https://www.youtube.com/watch?v=ctOkfaLJVkM

Questions?


916‐742‐7251


NOTES

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Apportionment Under The AMA Guides

By: Robert G. Rassp, [email protected]

• The term 'substantial MEDICAL evidence' means in your role as physicians that you provide medical conclusions that are based on objective findings, subjective complaints, and your clinical judgment "that are reasonable in nature, credible, and of solid value; and that a rational person might accept as sufficient to support a conclusion." (Braewood Convalescent Hospital v. WCAB (1983) 34 Cal. 3d 159, 164; 193 Cal. Rptr. 157, 48 Cal. Comp. Cases 566).

• The term “substantial evidence” means items of “evidence that are reasonable in nature, credible, and of solid value; and that a rational person might accept as sufficient to support a conclusion.” (Braewood Convalescent Hospital v. WCAB (1983) 34 Cal. 3d 159, 164; 193 Cal. Rptr. 157, 48 Cal. Comp. Cases 566), Supreme Court of California decision.

• “Reasonable Medical Probability” = means that there is at least a 51% probability that something is true.

• It is somewhat higher than the “preponderance of evidence” legal standard that means a feather of weight that is greater than 50% probability of truth or “more probable than not.”

• Case law allows a physician to state what “approximate percentage” of permanent disability is work related and what approximate percentage is non‐industrial to a degree of reasonable medical probability. See Marlene Escobedo vs. Marshalls (2005) 70 Cal. Comp. Cases 604 (WCAB en banc decision); E.L. Yeager Construction vs. WCAB (Gatten) (2006) 145 Cal. App. 4th 922, 52 Cal. Rptr. 3d 133, 71 Cal. Comp. Cases 1687.

6/14/2016

3

• Labor Code Section 4663(a): • “Apportionment of permanent disability shall be based on

causation.”

• Sub‐section (b) of Section 4663 mandates all physicians who address the issue of permanent disability must make an apportionment determination.

• Sub‐section (c) mandates that in that determination of apportionment, the physician shall make a finding as to “what approximate percentage of the permanent disability was caused by the direct result of injury [AOE/COE] and approximate what percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries.”

• Labor Code Section 4664(a): • “The employer shall only be liable for the percentage of

permanent disability directly caused by the injury AOE/COE.”

• Subsection (b) mandates that “if the Applicant has received a prior award of permanent disability, it shall be conclusively presumed that the prior permanent disability exists at the time of any subsequent industrial injury. This presumption is a presumption affecting the burden of proof.”

• Subsection (c) simply says that no region of the body can exceed 100% permanent disability over the life time of the injured worker.

• The focus of this presentation is on “cross‐over” cases – in which there are alleged orthopedic, psychiatric, and internal medical injuries, aka “ortho, psyche, and internal”

• Further focus is on apportionment between separate injuries where both have the AMA Guides apply

• The roles of the doctor, the WCJ, the WCAB, and you

• The take‐aways today apply to all issues of developing the record before, during, and after trial

6/14/2016

4

• Radiator USA vs. WCAB (2015) 80 Cal. Comp. Cases 79 (Kang)• Embarrasses the parties, the WCJ, and the WCAB

• Admitted specific injury for truck driver to his back, diagnosis of osteoporosis, sleep disorder, and depression

• AME ortho (Pechman) opines MMI, 50% PD due to industrial injury, 50% due to non‐industrial osteoporosis.

• AME in rheumatology (Dr. Bluestone) says IW has osteoporosis that is non‐industrial but IW also is depressed with a sleep disorder

• Radiator USA vs. WCAB (2015) 80 Cal. Comp. Cases 79 (Kang)• Treating psychologist Dr. Nogales says IW “probably” meets the

51% threshold of compensability for psyche and sleep disorder, says IW is TTD but wants to review other doctor reports, employment records, and Applicant’s deposition

• Case goes to trial, WCJ finds compensable psyche and sleep disorder, TTD status.

• Def appeals and WCAB panel upholds WCJ

• Court of Appeal reverses and uses harsh language towards the parties, the WCJ, and the WCAB

• Radiator USA vs. WCAB (2015) 80 Cal. Comp. Cases 79 (Kang)• The WCAB as an administrative agency has an affirmative duty to

develop the record, especially if medical evidence is evenly balanced on the issue of industrial causation.

• “The medical reporting in this case had a serious flaw which the appeals board should have recognized, and, had the responsibilityto cure.”

• “While the defendant could have acted more vigorously, it is also true that the WCAB may not leave undeveloped matters which it acquired, its specialized knowledge should identify as requiring further evidence.”

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• Radiator USA vs. WCAB (2015) 80 Cal. Comp. Cases 79 (Kang)

• The duty to develop the record under McDuffie vs. LACMTA (2002) 67 Cal. Comp. Cases 138 (WCAB en banc decision)

vs.

• The WCJ not bailing out a negligent attorney under San Bernardino Community Hospital vs. WCAB (McKernan) (1999) 74 Cal. App. 4th 396, 94 Cal. Rptr. 2d 516, 64 Cal. Comp. Cases 986

• If a physician fails to provide an apportionment analysis, then the report does not constitute substantial medical evidence• Does this mean the Applicant has the burden of proof?

• See Marlene Escobedo vs. Marshalls (2005), 70 Cal. Comp. Cases 604 (WCAB en banc decision); E.L. Yeager Construction vs. WCAB (Gatten) (2006) 145 Cal. App. 4th 922, 52 Cal. Rptr. 3d 133, 71 Cal. Comp. Cases 1687; Benson vs. WCAB (2009) 170 Cal. App. 4th 1535, 74 Cal. Comp. Cases 113.

• Developing the record in psyche cases• Causation of injury vs. causation of PD

• Rolda vs. Pitney Bowes, Inc. (2001) 66 Cal. Comp. Cases 241 (WCAB en banc decision)

• PD determination includes apportionment of PD and may differ from analysis of causation of injury

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• If a psyche or internist hitches his or her wagon on apportionment by an orthopedic surgeon• Other physicians must indicate how and why they agree with the

ortho based on their own expertise

• If other physician says the injuries are “inextricably intertwined” and PD cannot be apportioned between multiple injuries, the physician must state how and why he or she came to this conclusion and why he or she is not following the orthopedic apportionment

• What does Benson really say about this?• Benson vs. WCAB (2009) 170 Cal. App. 4th 1535, 74 Cal. Comp. Cases 113

APPORTIONMENT CONSIDERATIONS

In considering apportionment, a physician should determine apportionment of permanent disability utilizing the following factors:

• How severe a specific injury was in terms of impact (e.g. did the Applicant fall 3 feet off a chair or 12 feet off a ladder?)

• How arduous was the Applicant’s job as performed?

• Was there a gap in medical treatment to the same part of body from a prior injury (industrial or non‐industrial prior injury)?

APPORTIONMENT CONSIDERATIONS

In considering apportionment, a physician should determine apportionment of permanent disability utilizing the following factors:

• Was there continuous treatment from a prior injury to the same part of body that led up to a more recent injury?

• Did the Applicant recover from a prior injury to the same part of body?

• What does the diagnostic imaging studies show after a prior injury or from prior medical treatment for a non‐industrial condition to the same part of body?

• Look at the chronology of medical events from when there were no signs, symptoms, or complaints to the present time.

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APPORTIONMENT CONSIDERATIONS – Prior Awards

• What if there is a prior award and the Applicant has a new injury?

• Apportionment of permanent disability has to be addressed by the treating and evaluating physicians. Apportionment under Section 4664 occur under two circumstances and results in a conclusive presumption:

• Prior award is based on the 1997 PDRS or earlier version (based on work restrictions) and new injury is based under the AMA Guides 5th Edition; or

• Prior award is based on a post 1/1/05 date of injury or otherwise was based on the AMA Guides 5th Edition and new injury is also under the AMA Guides 5th Edition

APPORTIONMENT CONSIDERATIONS – Prior Awards: 1997 v. 2005 PDRS

• If a prior award was based on the 1997 or earlier PDRS, then you cannot simply subtract a prior permanent disability rating from the current one that is based on the AMA Guides. This is because it would be like comparing apples to oranges.

• See for example, County of Los Angeles vs. WCAB (Barnett) (2010) 75 Cal. Comp. Cases 155 (writ denied); Minvielle vs. County of Contra Costa (2010) 76 Cal. Comp. Cases 896 writ denied).

• Remember, before you can apportion permanent disability, you must rate permanent disability and adjust for DFEC [or adjustment factor of 1.4 if the date of injury is on or after 1/1/13], age, and occupation first. Then you apply apportionment under Sections 4663 or 4664.

APPORTIONMENT CONSIDERATIONS – Prior Awards: 1997 PDRS v. 2005 PDRS

• If prior award was based on grip loss using work restrictions (no repetitive gripping, grasping, and fine manipulation) from carpal tunnel surgery, 15% PD

• Post 1/1/05 AMA injury was a fractured wrist, rating was also based on grip loss

• WCJ allowed the subtraction method because the same AME evaluated both cases and conducted the grip testing the same way in both evaluations (Dynamometer, setting “B”) indicating same in the AME report for AMA injury case.

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• Remember, WPI is based on anatomic loss, diagnosis related, or functional loss

• What was DOI #1 WPI based on?

• What is the WPI rating for DOI #2 based on?

• Can you subtract a prior PD based on diagnosis related rating from a current functional loss rating?

• Can you subtract a prior PD based on functional loss WPI rating from a current functional loss rating?

• What if one or both ratings for DOI #1 and DOI #2 are based on A‐GIII?


• For apportionment under Labor Code Section 4664 between a prior award that was based on the AMA Guides and a new injury involving the same part of body, you must take these steps:

• How was prior WPI determined? E.G. DRE vs. ROM for spine?

• How is current WPI determined?

• What were the objective findings for prior rating vs. current one?

• Is there overlap between the prior permanent disability and the current one?

• An Applicant cannot claim he or she recovered from a prior injury that resulted in an Award if apportionment is established under Section 4664 prior award

• An Applicant can claim he or she recovered from a prior permanent disability if apportionment is under Section 4663.


• For example, if a knee injury in 2005 rated 5% permanent disability based on a torn medial meniscus repair and a new 2014 injury involves a torn lateral meniscus repair, there would be no apportionment under Section 4664 because the new knee impairment involves a different part of the knee.

• However, if the prior award is based on consideration of Almaraz‐Guzman III [Milpitas USD vs. WCAB (Guzman) 187 Cal. App. 4th 808, 115 Cal. Rptr. 3d 112, 75 Cal. Comp. Cases 837] in terms of loss of function, the current rating may be reduced by all or part of the prior rating, depending on overlap.

• Defendants have the burden of proving overlap between the prior award and the new rating. See Kopping vs. WCAB (2006) 143 Cal. App. 4th 1099, 71 Cal. Comp. Cases 1229.

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• However, if the prior award is based on consideration of Almaraz‐Guzman III [Milpitas USD vs. WCAB (Guzman) 187 Cal. App. 4th 808, 115 Cal. Rptr. 3d 112, 75 Cal. Comp. Cases 837] in terms of loss of function, the current rating may be reduced by all or part of the prior rating, depending on overlap.

• E.G. Prior medial meniscus injury is rated based on Table 17‐5 antalgic gait under AG‐III and new injury WPI is based on Table 13‐22 Station and Gait, you might be able to argue about subtraction

• Defendants have the burden of proving overlap between the prior award and the new rating. See Kopping vs. WCAB (2006) 143 Cal. App. 4th 1099, 71 Cal. Comp. Cases 1229.

• Sanchez case: Old injury is ankle sprain = 7% PD, based on subjective complaints, new injury was a fractured ankle resulting in loss of ROM, no apportionment


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• Class 1, 9% WPI from Table 13‐15 minus 7% WPI from Table 17‐5?


• Defendants have the burden of proving overlap under the Kopping case which has proven to be elusive, if not impossible.

• If the prior 2005 knee injury in the example above had been rated based on the injured worker having an antalgic gait (Table 17‐5) and the current rating for a 2014 injury is based on a total knee replacement (Tables 17‐35 and 17‐33), then defendant would have a hard time proving overlap.

• On the other hand if the prior 2005 injury award was based on arthritis of the medial, lateral, or patellofemoral compartment (Table 17‐31) and the current rating was based on a total knee replacement then there is total overlap and defendant could make the argument to subtract the prior award from the current one pursuant to Labor Code Section 4664(b).

Knee‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐

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The more points, the better the total knee

replacement result.

Table 17‐33 TKR:


• How about an old 2005 shoulder injury, e.g. impingement of sub‐acromion with bone spur removal from distal head of humerus?

• New injury in 2014 is distal clavicle resection arthroplasty and rotator cuff repair

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N Arthroplasty = removalof the joint

Case Example #5


• Otherwise, if Defendant is not able to prove overlap, then the remaining argument regarding apportionment defaults to an analysis of apportionment under Labor Code Section 4663 – what percentage of the current disability is caused by the 2014 injury and what percentage of the current disability is due to other factors, including the prior award?

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• What if the prior award in a 2005 lumbar spinal case was based on the DRE method, let’s say DRE Category II 5% WPI, and the new 2014 injury to the lumbar spine now rates DRE Category III 13% WPI?

• Do you automatically subtract the prior award under Section 4664 apportionment? If not, how does LC 4663 apportionment work?

• Again, defendant would have to prove overlap for the LC 4664 presumption. It seems that the analysis of overlap is a medical question as much as it is a legal concept.

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• If the prior award involved an L4‐L5 problem without radiculopathy and the new injury involves a herniated disc at L5‐S1 then there is no overlap. • However, if prior award was based on AG‐III then….?

• Plus the DRE III rating is due to a radiculopathy that did not exist from the prior 2005 injury.

• If both injuries involved the same level of the lumbar spine then you have a fairly good argument of overlap but that must be established medically by a treating or evaluating physician.


• What if the prior award was based on DRE and the new injury is based on ROM?

• Can there be overlap?

• There is no case law on this issue yet but it is likely to arise soon. It is probable that counsel would have to focus on the medical diagnosis, the levels of pathology, and the cause of permanent impairment for each injury to determine if overlap exists.


• If the prior award was based on ROM and the new award is based on ROM then it is possible to prove overlap with subtraction of permanent disability under Section 4664(b).

• In that event, the issue is whether the ROM measurements are conducted the same way between the earlier MMI evaluation and the more recent one.

• Moreover, Table 15‐7 will be the final determinate of whether true overlap occurs because the ROM method relies on a spinal diagnosis that could be totally different between two or more injuries to the same sub‐region of the spine. If there are different spinal diagnosis for each injury from Table 15‐7 then there probably is no overlap, unless defendant would be able to convince a physician how overlap can occur when the spinal diagnosis between two or more injuries are different.

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Case Example #4

• What about LC 4663 apportionment to risk factors? • An extra rib for thoracic outlet syndrome;

• A down‐sloping acromion for shoulder impingement;

• High cholesterol for heart disease;

• The aging process for osteoporosis?

• See e.g. American Airlines Inc. vs. WCAB (Milivojevich (2007) 72 Cal. Comp. Cases 1415 (writ denied) [high cholesterol is only a risk factor for heart disease – it is not causative of permanent disability]; Vaira vs. WCAB (2008) 72 Cal. Comp. Cases 1596 (DCA opinion not published in official reports)[73 year old has fractured vertebral body with long lasting osteoporosis remanded for further development of the record to determine how long person has a disease process dictates potential apportionment, not the person’s age] .

Take Aways

• Physicians need to separately and thoroughly address apportionment of permanent disability based on his or her own independent analysis

• If a physician relies on another physician’s apportionment analysis, he or she must state how and why he or she agrees with the apportionment, e.g. internal medicine or psychiatric AME or PQME adopts apportionment based on orthopedic surgeon’s conclusion

• The parties need to develop the record on causation of injury, causation of permanent disability, and apportionment when the Applicant is MMI prior to trial

• Do not sit idly by while the record in a case is deficient on crucial medical‐legal issues (Lawrence Lorenz vs. Encino Hospital 2014 Cal. Wrk. Comp. P.D. LEXIS 410)

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Take Aways

• Judges need to be arbiters of the record – to make sure conclusions of physicians are based on reasonable medical probability

• The WCAB panels should not have to develop the record when the parties and the trial judge already had the best opportunities to do so

• A WCJ may write a post‐trial letter to a physician to develop the record provided that the parties have an opportunity to object

• If apportionment between industrial injuries cannot be parceled out then the physician must state why they cannot be parceled out

• Apportionment under Labor Code Section 4664 is difficult since defendants have the burden of proving overlap

Take Aways

• Apportionment between prior injuries rated under the AMA Guides and new injuries under the AMA Guides is also difficult under both Labor Code Sections 4663 and 4664 which requires medical analysis

• Most cases will result in apportionment under Section 4663 if there is more than one industrial injury to the same part of body using the AMA Guides, especially if alternative rating methods were used in the prior injury or in the new one

• An Applicant cannot claim he or she recovered from a prior injury that resulted in an Award if apportionment is established under Section 4664 prior award because of the conclusive presumption

• An Applicant can claim he or she recovered from a prior permanent disability if apportionment is under Section 4663.

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