By: David Kizer, Esq.

The AME/QME process currently remains the method by which medical-legal evaluations are obtained and disputes are resolved under the California workers’ compensation system. Over the past decade, the legislature amended the relevant sections and the result has been a new system designed to limit the expenses of continued litigation under the process while keeping most of its unique characteristics. Nonetheless, Labor Code section 139.2 (appointment of QMEs) remains on the books as do several of the original QME statutes, albeit, in many respects, unrecognizable from their original form. With additional changes brought about to the AME/QME process first under SB 899, AB 749 and last year under SB 863, the current system, although still resembling the original QME process enacted in 1989, is vastly different. This article is intended to assist the physician in understanding his or her role within the larger context of the medical-legal process and will address this process as it now exists after the most recent legislative changes.

 By: Dana Livingstone-Lopez

The intent of this article is to provide a common sense understanding of the issues associated with causation in California workers’ compensation. The article will review the following terms and the intent behind these terms in the medical legal context of CA Workers’ Compensation. Causation, AOE/COE, Aggravation, Exacerbation, Derivative effect, Compensable consequence, Specific injury, CT injury, Presumptive injury.

By: Dana Livingstone-Lopez

How can an AME or QME best fulfill the purpose of a medical-legal evaluation, and minimize the time required to bring a workers’ compensation claim to a proper resolution? This article contains a comprehensive outline, focusing on orthopedic injuries, but helpful with all specialties, ensuring that a physician fulfills the required elements of a medical-legal report. With a complete, thorough and excellent report, the parties will know what you concluded represents your best assessment of the issues, based on reasonable medical probability given the evidence that was available to you.

By: Raymond F. Correio, Esq. 

In 2001, the WCAB issued an en banc decision in Rolda v. Pitney Bowes, Inc. (2001) 66 Cal. Comp. Cases 241. Unlike a WCAB panel decision, an en banc decision by the WCAB is binding on all Workers’ Compensation Judges in the state. Labor Code §3208.3 provides that for a psychiatric injury to be compensable, certain conditions must be satisfied. Pursuant to Labor Code section 3208.3(b)(1), for a psych injury to be considered work related, an injured worker must establish by a preponderance of the evidence that actual events of employment predominantly caused the psychological injury.

By: David Kizer, Esq. 

Cumulative injury is one of the more difficult concepts for physicians in the workers’ compensation field. Physicians often must address the long-term effects of work exposure to the psyche, the back, extremities and/or internal organs and must do so while simultaneously explaining (to the satisfaction of a workers’ compensation judge) why some elements of the exposure contributed more to the overall snapshot of a worker’s disability while others did not. This article covers issues regarding dates of injury, multiple injuries and multiple employers.

By: Duane H. Chernow, Esq. 

From another perspective, this article details the cumulative trauma and the hazard of complexities for all participants in the workers’ compensation community. Physicians are routinely asked to comment whether a worker has sustained cumulative trauma, when the period of cumulative trauma occurred, whether there are multiple periods of cumulative trauma, or to discuss a “post-termination” cumulative trauma claim. Whether or not a worker has sustained a cumulative trauma is primarily a medical question. A physician is tasked with assessing whether the job activities and work exposure, performed over a period-of-time, is “injurious,” leading to a diagnosable medical condition requiring treatment, and potentially, impairment.

 By: Christopher Brigham, MD 

The AMA Guides are the most widely used basis for defining permanent impairment. The Guides only assess impairment. Impairment is defined as the loss, loss of use, or derangement of any body part, organ system or organ function. In this article, the concepts of impairment evaluation and the appropriate application of the Guides are reviewed. This article specifically addresses Chapters 1 and 2 of the AMA Guides to the Evaluation of Permanent Impairment, 5th Edition.

 By: Christopher Brigham, MD

Spinal injuries are the most common reason for an impairment rating. There are two methods of evaluating the spine in the AMA Guides, 5th Edition: the Diagnosis Related Estimates (DRE) and the Range of Motion (ROM). The spine is divided into three regions: cervical, thoracic and lumbar. In this article, the concepts of impairment evaluation of the spine and the appropriate application of the Guides are reviewed. Practical guidance on the use of the Guides and avoiding common errors is offered

 By: Christopher Brigham, MD 

The methods for upper extremity impairment assessment and specific ratings have been developed over a period of years, and are based in large part upon contributions from various specialty societies. In this article, the concepts of impairment evaluation and the appropriate application of the Guides in evaluating Upper Extremity impairment will be reviewed. In conjunction with this instruction, the reader will achieve the greatest learning by reviewing the AMA Guides to the Evaluation of Permanent Impairment, 5th Edition, Chapter 16.

 By: Donald M. Pilger, Esq. 

Chapter 16 of the AMA Guides to the Evaluation of Permanent Impairment, 5th Edition, details a specific rating method in connection with a diagnosed peripheral nerve disorder. This article addresses two essential features in connection with impairment ratings related to peripheral nerve disorders, including the underlying prerequisites and methodology of assessing sensory loss impairment which results from peripheral neuropathies, as well as the more subtle considerations involved in the rating of peripheral nerve disorders, under the AMA Guides, 5^th edition.

By: Donald M. Pilger, Esq. 

Chapter 16 of the AMA Guides to the Evaluation of Permanent Impairment, 5th Edition, provides numerous methods for assessing impairment related to shoulder injuries. This article outlines the applicable protocols, related to the most common impairment assessment methods associated with shoulder injuries.

 By: Marjorie Eskay-Auerbach, MD 

In Chapter 17 of The AMA Guides, 5^th edition, the lower extremities are divided into six anatomic sections for the purposes of calculating impairment ratings: the pelvis, the hips, the knees, the legs, the ankles and the hindfeet. Each of these anatomic sections has associated soft tissues, joints and neural and vascular structures. This article focuses on the principals and methods of assessing lower extremity impairment.

By: Richard Katz, MD 

The basis of impairment rating is to evaluate pain in context to the underlying, objectively defined impairment. In general, the percentages awarded in the AMA Guides for various permanent impairments allow “for the pain that may occur with those impairments.” While the AMA Guides and other authorities consider pain to be of secondary importance relative to objectively defined impairment, many patients present to the Qualified Medical Examiner or primary treating physician with subjective complaints but little or no objective findings. Moreover, efforts to standardize guidelines for disability evaluation have met with little success. There are few benchmarks available to the disability examiner against which to assess this difficult patient group. This article offers some guidelines that are of value in assessing pain patients more effectively.

By: Greg Goddard, DDS 

Dental injuries to workers are no different than most other injuries and can include three types: direct and cumulative trauma, compensable consequences of other medical conditions, or treatment for industrial injuries. Injuries to the teeth as a result of direct trauma are straightforward. Teeth are knocked out, broken, or fractured off at the gumline. Many of these teeth need to be extracted and replaced with costly implants or other prosthesis. Injuries to the temporomandibular joint and muscles of mastication are sometimes the result of traumas, such as a slip and fall or whiplash injuries, but are often caused by cumulative trauma and stress. The diagnosis of a TMJ injury consists of a careful history, an examination, and imaging.

 By: Ken Kingdon, Esq. 

According to the Guides, “Whenever the same impairment is discussed in different chapters, the Guides tries to use consistent impairment ratings across the different organ systems”. However, when impairment ratings are not consistent across the different organ systems, “…generally, the organ system where the problems originate or where the dysfunction is greatest is the chapter to be used for evaluating the impairment”. This article helps guide the physician toward exploring different chapters of the Guides for rating purposes.

 By: Donald M. Pilger, Esq. 

Chapter 17 of the AMA Guides to the Evaluation of Permanent Impairment, 5th Edition, addresses impairments of the lower extremities. As most practitioners are aware, Chapter 17 of the Guides includes many different methods for assessing impairment of the lower extremities. Indeed, 13 specific methods are outlined. In this article, we will discuss a method which is commonly seen, but which is often misapplied. This is the Arthritis method.

 By: Luis Perez-Cordero, CIR 

This article explores how the Labor Code and the CA Permanent Disability Rating Schedule (PDRS) compliments and strengthens the underpinning of the AMA Guides – rating the objective manifestation of impairment. This article addresses the current law, for dates of injury occurring after SB 863, and how the Disability Evaluation Unit converts the physician’s impairment rating into a permanent disability rating.

By: Scott Ashby, Esq. 

Throughout both the 1997 and 2005 Schedules for Rating Permanent Disabilities, rules are provided where multiple impairments and disabilities need to be either added or combined. The physician must first consult the rules laid out in the PDRS and AMA Guides concerning adding or combining of impairment.  Then, if there is a true basis (a “synergistic effect”) for adding impairments as opposed to combining the ratings, the physician must provide a detailed rational of that need, such that their opinion constitutes substantial medical evidence. This article addresses proper application of rules for adding or combining disabilities for multiple impairments and disabilities, in light of the Kite Decision.

 By: Sherry German, CIR 

This article addresses the use of the Almaraz-Guzman cases, as well as when an “analogy” can be used in the absence of that case law. When a worker is injured in California and they are determined to have reached maximum medical improvement with treatment, it is at this point the issue of permanent impairment is to be addressed in a permanent and stationary report by the primary treating physician, or a Qualified Medical Evaluator. If there is residual impairment, an impairment rating is required. The physician is directed to provide a rating based on the direct application of the instructions in the Guides. There are times, however, when an evaluator may opine that the impairment rating is either an inaccurate reflection of the impact a particular condition has on an injured worker’s ability to perform activities of daily living, or that a particular condition is simply not addressed in the Guides. This article addresses how to appropriately address this situation

By: Raymond F. Correio, Esq. 

Reporting physicians in the California Workers’ Compensation system whether treating physicians, Qualified Medical Examiners, or Agreed Medical Examiners are tasked with preparing not just medical reports but “medical-legal reports.”  To be relied upon by the parties and admissible as evidence at the Workers’ Compensation Appeals Board, medical-legal reports must constitute substantial evidence. In terms of assessing and evaluating a physician’s opinion on apportionment under Labor Code sections 4663 and 4664, it is critical to determine whether a physician’s opinion on apportionment in a medical-legal report or while being deposed, is based upon the correct legal standards as articulated by the WCAB and the Courts.  This article covers key points for physicians to consider when determining whether a medical-legal opinion on apportionment will constitute substantial evidence.

By: Raymond F. Correio, Esq. 

In terms of apportionment of permanent disability, a hotly litigated and debated issue relates to authorized medical treatment under the Court of Appeals decision in Hikida and how to determine apportionment of permanent disability under Labor Code Sections 4663 and 4664. Medical practitioners in the California’s workers compensation system whether agreed medical examiners, qualified medical examiners, or treating physicians receive countless letters from attorneys requesting that they address this issue in their medical-legal or treatment reports, and also find themselves frequently deposed on this issue.

By: David Kizer, Esq. 

An applicant had an admitted injury for both a cumulative injury and a specific injury. How should the two injuries be rated; as one injury or two? Should the two injuries be apportioned as two separate events or as one combined event? The answer to this query makes a huge difference in a permanent disability Award, because case law has established that, when the Board makes an Award of a combined disability under the rating system, the compensation paid to the worker is always higher (in many cases substantially so) than when the injuries are apportioned into two separate awards. This article discusses the details of this issue.

By: David Kizer, Esq.

Under the Reform Act passed in 2004, (SB 899) medical control under section 4600 was by and large returned to employers via the newly established Medical Provider Networks (MPNs) (Labor Code section 4613 – 4616.7) provided the insurance carriers elected to have their own MPN. The MPNs, as with any other change in the system, were criticized by some for unavailability of physicians, delays in treatment, and lack of sufficient specialists. Others pointed to the accessibility of medical care, successful return to work ratios and costs savings to the system. In a 2013 Reform Bill (SB 863) the legislature further refined the MPN networks. This article highlights the current MPN system.

By: Jon Don, Esq. 

The Subsequent Injuries Benefits Trust Fund (SIBTF) is a source of additional compensation to injured workers who already had a disability or impairment at the time of injury. For benefits to be paid from the SIBTF, the combined effects of the injury and the previous disability or impairment must result in a permanent disability of at least 70 percent. The fund enables employers to hire disabled workers without fear of being held liable for the effects of previous disabilities or impairments. This article explains the benefit and how the QME physician fits into the system.

By: Wm. J. Ordas, Esq. 

“Substantial evidence” is a completely unique legal concept. When the term “substantial evidence” is used, the medical report has already met some minimum requirements of a medical-legal report. Now the question becomes whether the report is medical evidence that the court can rely upon to support a decision. This article discusses the concepts of substantial evidence, and how to apply them.

The Chronic Pain Medical Treatment Guidelines apply when a patient has pain that persists three (3) or more months from the initial onset of pain (i.e.,12 weeks or more) as determined by following the relevant sections of the Medical Treatment Utilization Schedule (MTUS). The Chronic Pain Medical Treatment Guidelines provide a framework to manage all chronic pain conditions, even when the injury is not addressed in the Clinical Topics section of the MTUS.

By: David Kizer, Esq. and Dana Livingstone-Lopez 

This article will be limited to the application of the AMA Guides by the Disability Evaluation Unit (DEU) and the general process by which a rater assigns a rating under the AMA Guides. This article gives an example of an upper extremity rating taken from a physician’s impairment rating, converted to a Permanent Disability Rating by the DEU.  It will not discuss the legal arguments of whether the AMA Guides are rebuttable by other means.

 By: Scott Ashby, Esq 

This article assumes the med-legal examiner has a grasp on the standard workers’ compensation issues. The aim of this article is to better prepare the examiner for a deposition by understanding common themes that lead to the need for cross-examination.

By: Walter D. Colvin, Medical-Legal Consultant 

How can a psychologist/psychiatrist QME best fulfill the purpose of a medical-legal evaluation? This article contains a comprehensive outline, focusing on psych injuries, ensuring that the QME/AME fulfills the required elements of a medical-legal report. With a thorough report, based on substantial medical evidence, the parties will know your conclusions represent your best assessment of the issues given the evidence available to you. This article addresses both the Work Function Impairment form and the GAF scale, and the causation thresholds in psych injuries.

 By: Steven Feinberg, MD

This article is for the benefit of a new QME, and a solid review for all QMEs. Dr. Feinberg, a well-renowned medical legal expert in the California worker’s compensation system, summarizes key concepts and defines commonly used terms in the medical legal field of workers’ compensation. Links are included for more in-depth information and to complete the CE testing.

 By: Leslie Dilbeck, CEDIR 

The Qualified Medical Evaluator’s reporting is one of the most crucial pieces of evidence provided to determine benefit distribution in a California Workers’ Compensation case. As such, it is important for the evaluator to provide a comprehensive, objectively based report without bias or errors. One of the greatest areas of conflict for the parties involved in the case is the assignment of impairment by the evaluator.  In reviewing thousands of  impairment ratings for accuracy, Ms. Dilbeck identifies common errors in assigning impairment. This article will explore common evaluator pitfalls in determining impairment.

By: Kenneth Kingdon, JD, LLM

By: Clark Smith, MD

By: Dana Livingstone-Lopez 

By: William Zachry andTimothy Hui, DPT

By: Sherry German, CIR and Dana Livingstone-Lopez

Occupational Injury and Illness PERSPECTIVES