RE: GEORGE THE BARTENDER DUSTS OFF THE SECRET WEAPON OF LABOR CODE §4628 OR THINKING OUTSIDE THE BOX1
FROM THE LOBBY BAR AT THE HYATT:
As I made my way to the Lobby Bar at the Hyatt I looked forward to my favorite cocktail, a Beefeater Martini straight up with two olives.2 Yes, ever since my retirement in June, I have found myself drawn to my old haunt.
First, I was looking forward to seeing my friend Kim, the Hyatt’s breathtakingly beautiful cocktail waitress. Second, having that first sip of an ice cold Beefeater martini at the end of a hot day. And last but certainly not least, I was about to get the better of my adversary the notorious Ron Summers, George the Bartender’s workers’ compensation attorney.
Ever since my retirement in June my travels to the Lobby Bar have become more frequent as I knew I would see Ron, and today was no exception – sure enough down at the end of the bar I saw Ron and Dr. Nickelsberg, Ron’s favorite Primary Treating Physician (PTP).
I was close enough to Ron and Dr. Nickelsberg to hear Ron discussing with Dr. Nickelsberg how “disabled” his client was. It is indeed an irony that an applicant’s attorney can discuss what would be considered an ex parte communication if the conversation is with a Panel Qualified Medical Examiner (PQME).
In my opinion, a PQME should have the same presumption of correctness as and Agreed Medical Examiner (AME). For example, both the AME and PQME cannot be contacted directly by the parties, cannot have ex parte communications with the parties, a letter sent to a PQME must also be sent to the opposing party, and most importantly, PQME’s are selected by the Administrative Director, and not by the parties. If it walks like duck, quacks like a duck, it must be a duck.
Neither the Legislature, the Appeals Board, nor the Courts have addressed this huge discrepancy yet but hope springs eternal.
At this moment a very somber Frank Falls, noted defense attorney, came into the Lobby Bar with his primary client, Pat Pennipincher, claims manager for the Integrity Insurance Company, and located a table as far away from Ron as possible.
Both Frank and Pat looked very unhappy and therefore I had Kim bring them cocktails of their choice and came over to see what was wrong. Pat was grateful for my presence and explained that although a Declaration of Readiness to Proceed (DOR) had not been filed they were looking down the barrel of losing some $30,000.00 on a case which involved a simple low back sprain even though the applicant was back at work performing repetitive heavy lifting without restriction or complaints.
Ron Summers was the applicant’s attorney, and of course, Dr. Nickelsberg was the PTP. Ron, as I knew, filed all his cases at a specific Board where most judges follow the report of the PTP based on the reasoning that who better would know the applicant’s complaints than the treating doctor, as opposed to a PQME who only saw the applicant once.
Ron had brought with him the reports of the PQME and the PTP, Dr. Nickelsberg, which I reviewed.
The PQME had found that the applicant had fully recovered, had no spasm or muscle guarding in her low back, no radiculopathy, or other signs of nerve root involvement and correctly placed the applicant into the category of Diagnostic Related Estimate (DRE) or a Whole Person Impairment (WPI) of zero.
In addition, all of the industrial doctors found that the applicant had only sustained a low back strain before Dr. Nickelsberg took over as the PTP, after 30 days from notice of injury.
Dr. Nickelsberg, on the other hand, had found that the applicant’s disability after modification for age, occupation, and Future Earning Capacity (FEC), rated at 30% or $37,990.00.
Both Frank and Pat were appalled by the difference in the two reports and Frank was sure there was good reason to believe that a Worker’s Compensation Judge (WCJ) would rely on the treating doctor.
Frank’s adversary in the case was none other than Ron Summers and since I took delight in raining on Ron’s parade I asked to see the report of Dr. Nickelsberg and the PQME.
I first looked at the history which gave me the mechanics of the injury in which the applicant complained of injury in her low back by lifting a heavy box. Frank explained that the injury was admitted as industrial and the applicant had been provided with temporary disability benefits and medical treatment.
The only issue was the nature and extent of the applicant’s permanent disability. I thought to myself that the fact that both reports were so far apart was ironic as the rating system, per the AMA Guides to the Evaluation of Permanent Impairment, (Fifth Edition), aka the Guides, mandated by Senate Bill 899 after April 19, 2004, and was supposed to eliminate the concept of “dueling docs.”
Senate Bill 899 mandated that permanent impairment must be determined pursuant to the Guides. The intention of the legislature was to eliminate a permanent disability rating that would be based on subjective complaints alone.3
In reading over the reports of the PQME and Dr. Nickelsberg, I saw that the concept of “dueling docs” was alive and well. I pointed out to Frank and Pat that the concept of the Guides contemplated that all medical reports should basically arrive at the same conclusion as to impairment based on a valid medical examination pursuant to the Guides.
In reviewing the report of Dr. Nickelsberg, I noted that Dr. Nickelsberg had evaluated the applicant’s low back, and had rated the applicant for her cervical spine (5%); thoracic spine (7%) and lumbar spine (8%). The PQME had given the applicant 0% impairment.
After reviewing both reports, it did not appear that Dr. Nickelsberg and the PQME had examined the same person! Even though this case dealt with a low back injury only, Dr. Nickelsberg had also given the applicant ratings for the thoracic and cervical spine.
I told both Frank and Pat that the Guides were supposed to ensure that both exams by the treating doctors and the PQME or AME would find the same factors of impairment upon examination. I also pointed out to Frank and Pat that he should think outside the box and use the following steps if he wished to win his case:
1. Be familiar with the Guides
In this instance, especially pages 382 and 384 of the Guides, as Dr. Nickelsberg had used the DRE method, most low back strains qualify for either a DRE I or a DRE II, which is how Dr. Nickelsberg rated the lumbar, thoracic and cervical spine of the applicant. A DRE I would take a Whole Person Impairment (WPI) of zero which would not please Ron as that would mean no attorney’s fees.4
Page 382 basically tells a Doctor how to get from a DRE I with a WPI of zero to a DRE II with a WPI of 5-8%. The most important place to look on any medical report, pursuant to the Guides, is the examination portion as this instructs the doctor on whether or not the case is ratable for impairment. To get from DRE I to DRE II, the doctor’s examination must find muscle spasm, muscle guarding, asymmetry of spinal motion or a non-verifiable radicular root pain.
Looking over the treating reports of Dr. Nickelsberg I noted that each report found that the applicant had muscle spasm and muscle guarding in the cervical, lumbar and thoracic spine, which automatically equates to a DRE II rating regarding each segment of the back. This did not make sense for the applicant to have muscle spasm and muscle guarding in the thoracic, lumbar and cervical spine as the Guides specifically specify that once pain becomes chronic (thirty to sixty days after the injury) there is seldom muscle guarding or muscle spasm.
2. Utilize the forgotten gift to the defense, Labor Code §4628
The anti-fraud legislation effective on January 1st, 1990, provides in relevant parts as follows:
(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.
(b) The report shall disclose the date when and location where the evaluation was performed; that the physician or physicians signing the report actually performed the evaluation; whether the evaluation performed and the time spent performing the evaluation was in compliance with the guidelines established by the administrative director pursuant to paragraph (5) of subdivision (j) of Section 139.2 or Section 5307.6 and shall disclose the name and qualifications of each person who performed any services in connection with the report, including diagnostic studies, other than its clerical preparation.
(e) Failure to comply with the requirements of this section shall make the report inadmissible as evidence and shall eliminate any liability for payment of any medical-legal expense incurred in connection with the report.
All physicians, whether they be AMEs, QMEs or treating doctors must comply with this section or their reports will be inadmissible and they will not be paid.
3. Find out how the examination was performed
Take the deposition of the applicant as to how the examination was performed by the treating physician. This will allow you to determine whether the treating physician, in this case, Dr. Nickelsberg, palpated the applicant’s cervical, thoracic and lumbar spine. The proof in the pudding is that the examination process does not make much sense as the PQME did not find muscle guarding or muscle spasm when the treating doctor, Dr. Nickelsberg, found muscle guarding and muscle spasm long after the pain became chronic or more than sixty days from the injury.
At this point, I reached into my briefcase and pulled out the Panel decisions in the case of Rose Casado v. Kaiser Permanente, PSI, administered by Sedgwick, 2018 Cal. Wrk. Comp. P.D. LEXIS 399 in which the Board held that a QME report was inadmissible and stated that medical assistants performed the Jamar Dynamometer measurements as part of this evaluation by the QME and the QME’s report was unable to clarify which assistant performed the measurements in violation of Labor Code §4628(b). The WCAB explained that Labor Code §4628(b) requires a physician to disclose the name and qualifications of each person who performed a service in connection with the medical-legal report. Because the QME failed to do so, the WCAB concluded that his report was inadmissible per Labor Code §4628(e). I also referred Frank to the case of Beitpolous v. Cal. Corr. Healthcare Services., 2018 Cal. Wrk. Comp. P.D. LEXIS 82, 83 Cal. Comp. Cases issued by the board on March 14, 2018 in which the board again held that Labor Code §4628 was mandatory as follows:
Section 4628 was enacted as part of an overall reform package in 1989. The Legislature referred to section 4628 as an anti-ghostwriting statute because it was designed to protect the reliability of a medical evaluation by controlling the quality of the medical-legal report. Consistent with the nature and purpose of the statute, the Legislature drafted a relatively unambiguous statute leaving little room for equitable considerations.5
Frank and Pat became very excited regarding the cases that I quoted and also the potential uses of Labor Code §4628. Frank told Pat he was going to set the deposition of the applicant to inquire as to the thoroughness of the examination by Dr. Nickelsberg and if there was anybody else participating in the examination (such as a chiropractor) and if this was not disclosed in the doctor’s report.6
Frank then looked at me and said quizzically, “Well, what if we establish that Dr. Nickelsberg did not perform the exam by himself and thereby violated Labor Code §4628, and that the PQME did not comply with that section either, therefore rendering his report inadmissible as well.”
I looked at Frank and with a grin on my face said, “Thank God the defense does not have the burden of proof on permanent disability.”
THE FALLACY OF THE SLIDING SCALE METHOD
Frank also wanted to know about the sliding scales for Upper Digestive Tract Disease (Reflux Disease) (page 121, table 6-3 of the Guides) and also the sliding scales for Hypertension (page 66, table 4-1 of the Guides).7
I told Frank that absent object finding a Class one impairment was not ratable unless it affected the Activities of Daily Living (ADLs), but quite frequently Dr. Nickelsberg will put a number between 0 and 9 and not explain how the ADL’s were affected.
Frank told me that Dr. Nickelsberg, the PTP in Orthopedics, would quite frequently refer to his applicants his good friend and secondary treating physician, Dr. Ratbar and that Dr. Ratbar would diagnose Hypertension and Reflux, or both, to increase the rating.
I explained to Frank that the Class 1 ratings for Reflux disease, and Hypertension, would go up and down based on how the impairment affects the applicant’s ADL (page 4 and 5 of the Guides), absent actual objective findings. From my review of the reports of Dr. Ratbar, there were never any objective findings found. In this case a Class 1 impairment is only based on the applicant’s subjective complaints and cannot be increased because of the severity of the subjective complaints. The increase, absent objective findings, must be based solely on how the impairment affects the applicant’s ADL. Page 5 of the Guides provides as follows:
The activities of daily living, as originally developed for the Guides in the first and second editions, signify common activities currently represented in scales of Activities of Daily Living and Instrumental Activities of Daily Living. The Guides refers to common ADLs, a listed in Table 1-2. The ADLs listed in this table correspond to the activities that physicians should consider when establishing a permanent impairment rating. A physician can often assess a person’s ability to perform ADLs based on the knowledge of the patient’s medical condition and clinical judgment. When the physician is estimating a permanent impairment rating, Table 1-2 can help to determine how significantly the impairment impacts these activities. Using the impairment criteria within a class and knowing the activities the individual can perform, the physician can estimate where the individual stands within that class.
I told Frank that PTP’s seldom mentioned how the ADLs are affected by the impairment and therefore both Hypertension and Reflux disease would rate zero on a scale of 0-9%. I pointed out to Frank how a Class 1 impairment in Reflux disease cannot affect ADLs, as the only restriction for Reflux disease is “don’t eat spicy foods”. Also, Class 1 Hypertension almost never affects ADLs.8
I also told Frank to remember to ask at the applicant’s deposition as to what body part she injured while lifting the heavy box. According to the history of injury, I assume the applicant will reply that she only injured her low back. Thus there would be no reason for Dr. Nickelsberg to examine the thoracic and cervical spine, much less to assign an impairment value. Frank interrupted me and advised that he has seen some Orthopedic PTP’s assign a DRE I, but because of subjective complaints give the WPI a 3% rating. I again reached into my briefcase and referred Frank to the case of Miguel Espinoza v. Southwest Airlines, ACE American Insurance Company (ADJ6796006) issued by the board on February 18th, 2011 in which the board commented that a DRE I category can only rate zero and no higher, as the board stated as follows:
Therefore, because there is no underlying WPI pursuant to DRE Cervical Category I and DRE Thoracic Category I, a pain add-on is inappropriate.
I then referred Frank to the Workers’ Compensation Appeals Board’s en banc decision in Cynthia Blackledge v. Bank of America, ACE American Insurance Company (ADJ1735018) 75 Cal. Comp. Cases 613, 2010 Cal. Wrk. Comp. LEXIS 74, 2010 Cal. Wrk. Comp. LEXIS 74., in which the board mandated the roles of the WCJ, the physician, and the rating specialist in applying the Guides.9
Aside from George, Kim and myself, all characters of the Lobby Bar are fictional and are a product of my warped and vivid imagination as is the story line.
However, I do believe that our defense industry has forgotten the importance of Labor Code §4628 and its usefulness in defending a case in which medical reports are far apart on the issue of permanent disability. SB899 was supposed to do away with the concept of “dueling docs” but did it really?
Make mine a double, George.
1 F For those new patrons to the Lobby Bar, George the Bartender’s workers’ compensation case involves an injury to his elbow, epicondylitis (tennis elbow), sustained from the repetitive serving of martinis to me. If there ever was an admitted industrial injury, this is it!
2 A Beefeater martini straight up is best served at 38 degrees Fahrenheit.
3 A topic discussed at length in a previous edition from March 2016 – George the Bartender Analyzes the Concept of the Dueling Doctors Eliminated by SB 899 . . . Or Was It?
4 I assume if a PTP report had a rating of 0% that would mean the PTP would not be doing PTP work much longer.
5 Much like Mary Poppins’s seemingly bottomless carpetbag (of Disney fame) and Hermione Granger’s bottomless handbag (of Harry Potter fame), my briefcase possesses magical powers, granting me the ability to pull out any decision at a moment’s notice. A copy of Casado and Beitpolous can be obtained by email request.
6 Many PTP’s will try to comply with Labor Code §4628 by listing names of various people who could have taken the patient’s history, but pursuant to Labor Code §4628 this disclosure must be specific. Also I knew that
Dr. Nickelsberg used chiropractors in his practice that he did not disclose in his reports.
7 This Reflux disease was referred to as a Hiatal Hernia when I started practicing in 1973.
8 Ironically this is why hypertension is quite commonly referred to as the silent killer.
9 A copy of the Blackledge and Espinoza decisions can be obtained by e-mail. Blackledge mandates that the WCJ must issue instructions to the Disability Evaluation Unite based on the Applicant’s impairment taken from the examination portion of the doctor report. Blackledge is an en banc decision which is binding on all judges. I am proud to say Blackledge was my case.