California: Face to Face With a Bunch of PQMEs

In early 2017, a PQME referral company hosted a continuing medical education (CME) program for its panel QME physicians in the Southern California area. The first three hours of the six hour program featured an applicant’s attorney, a defense attorney, and a workers’ compensation judge who separately presented a curriculum to over 100 doctors in various specialties that included topics that were requested by the company’s administration. The teaching points focused on how to write medical reports that constitute substantial medical evidence and which conclusions are based on reasonable medical probability. The topics included the definition and examples of cumulative trauma injuries, causation of injury, causation of permanent disability, WPI ratings, and apportionment. Plenty of real life examples were given.

The audience was asked to write questions down for the panel to consider either during or after the seminar, or at the end of each one-hour segment. As is usually the case, time ran out and the panel was left with over 20 written questions from the physicians that were not answered. This article will quote those questions verbatim (as long as this author can read the doctor’s handwriting) and the answers or commentary on them will be provided. Fortunately, no one wrote his or her name down on the questions. The name of the medical-legal referral company will not be mentioned in order to protect the guilty. Here are some of the questions:

1. “Do you need to identify the name of the person typing your QME report?”

Uh, no. The attestation clause of a medical-legal report is governed by Labor Code Section 4628(a) and (b), Title 8 of the California Code of Regulations, Section 10606(b), and Section 2.6 of the AMA Guides. The most important elements that need to be in the attestation clause is the amount of the physician’s face to face time, who reviewed the medical records and provided the review to the PQME for his or her review, who took the injured worker’s history and the PQME who reviewed the history with the Applicant, and who performed the basic non-physician allowed parts of the examination (such as taking vital signs).

The take-away that led to this question is the fact that so many PQME evaluators do not conduct the actual examination of the patient for an MMI evaluation. We have seen too many chiropractors, technicians, or so called “WPI experts” conduct the range of motion examinations required by the AMA Guides. Any PQME or AME report that has anyone other than the physician conducting the examination of the Applicant is not substantial medical evidence. One PQME asked one of the panel members privately if he can have his nurse do the circumference measurements of an Applicant’s arms, thighs, knees, and calves. The answer is NO! The reason is that atrophy is a measurable impairment rating in the AMA Guides, especially in the lower extremities [See Table 17-6, on page 530], and in the upper extremities [e.g. see thenar and hypothenar atrophy as part of severe carpal tunnel syndrome, mentioned on page 495].

2. “We are not lawyers. How can we [be] expected to know all of the legal decisions? Why can’t we have legal help in these complex cases? In other states, we can discuss these matters.”

Attorneys and physicians speak different professional languages and think differently, almost like separate species. Evaluating physicians can ask an attorney about a general legal issue, such as the definition of “injurious exposure” in a cumulative trauma case [See, Aetna Casualty and Surety vs. WCAB (Coltharp) (1973) 35 Cal.App.3d 329, 38 Cal. Comp. Cases 720]. It is not unusual to send a doctor a copy of a case, such as the Benson or Escobedo decisions. At least once a week this author gets calls or emails from physicians asking about a legal theory or case law. It is not inappropriate for a PQME to ask a lawyer a generalized legal question. However, the PQME cannot ask an attorney legal questions where the attorney represents a party in a case. That would violate Labor Code Section 4062.3 which prohibits ex-parte communications with a physician.

3. “Coccidioidomycosis is an insidious disease qualifying for unlimited WCAB jurisdiction?”

“Can you comment on a cumulative trauma for [an injury that involves] neurotoxicity, e.g. [from] the Fricker Fire in Anaheim in 1985 or for farm workers exposure to pesticides in Indio?”

The short answer is “yes.” The context of this first question referring to Valley Fever was on the subject of cumulative trauma injuries under Labor Code Sections 3208.1, 5412 and 5500.5 and the statute of limitations. The panel discussed insidious diseases such as cancer, mesothelioma, needle stick injuries, and toxic exposure incidents when there is a latency period and the industrial exposure does not manifest itself until years after the exposure occurred. The “date of injury” for a cumulative trauma is the specific date that the employee discovers his or her condition is work related and he or she suffers from a disability from it. Usually, the date of knowledge is when a doctor tells the employee his or her condition is from toxic exposure or from work activities. The take away in this case is that the date of injury for a toxic exposure case may be years after the actual exposure occurred and the WCAB has continuing jurisdiction over these injuries.

4. “After January 2013 isn’t wrong for doctors to comment on treatment given? When should doctors comment on treatment?”

The question is, can a PQME or AME comment on reasonableness of treatment rendered in the past and can a PQME or AME comment on what future medical treatment is reasonable and necessary? This is a very good question in light of Labor Code Sections 4610, 4610.5, and 4610.6, the utilization review and independent medical review protocols that medical treatment requests by a treating physician for authorization are subject to in all injuries on or after July 1, 2013. The answer is yes, an evaluating physician can comment on the Applicant’s prior medical treatment and his or her opinion on the need for future medical treatment, including making specific recommendations for such things as spinal surgery, a joint replacement, carpal tunnel release, and other specific recommendations. In fact, if an evaluating physician comments on the need for treatment he or she should include a specific reference to the MTUS, ACOEM, and ODG treatment guidelines. Remember, a PQME or AME is considered “expert opinion” which is the fourth level of authority for UR and IMR protocol analysis for reasonable and necessary medical treatment. See Labor Code Section 4610.5(c)(2)(A)-(F).

5. “In terms of apportionment, what’s the difference between impairment and disability? i.e. apportioning disability versus apportioning impairment?”

This is a question that confronts physicians and attorneys who are new to the workers’ compensation system. Labor Code Section 4663 applies to apportionment of permanent disability. In fact, under the 2005 Permanent Disability Rating Schedule (PDRS), apportionment is not applied until after a WPI has been adjusted for the DFEC [for dates of injury before 1/1/13] or the 1.4 adjustment factor [for injuries on or after 1/1/13], occupation, and age at the date of injury. So it is improper for a physician to say “25% of the WPI of 20% for the right knee osteoarthritis is apportioned to non-industrial factors so the final WPI is 15%.” The physician should say “25% of the Applicant’s permanent disability is apportioned to non-industrial factors since the Applicant presented with pre-injury pathology in the form of osteoarthritis of the knee joint, and 75% of the patient’s disability is caused by the industrial injury. This conclusion is based on reasonable medical probability.” Although it is tempting to phrase conclusions about apportionment in terms of percentage of WPI, it is more accurate for physicians to apportion permanent disability based on Labor Code Section 4663 since that section does not refer to “WPI” at all.

6. “(1) Applicant has a work injury. (2)Then Applicant had surgery that was authorized to treat the work injury. Can we rate apportion to a bad technique of surgery resulting [in] additional disability, could we apportion to that second causation?”

I did not make this one up. No, you cannot apportion to a bad outcome from a surgical procedure, even if the actual surgical procedure was somehow obsolete or substandard. A PQME or AME takes the patient the way he or she finds him. Outcomes of medical treatment can impact an ultimate WPI rating but a physician cannot apportion disability to an obsolete or “bad” surgical technique that causes a poor surgical outcome. Remember, the AMA Guides mandate that the impairment rating procedures do not occur until the injured worker is MMI and the impairment ratings are based on anatomic loss, diagnosis related, or functional loss. Apportionment of disability cannot be based on a poor surgical procedure. On the other hand, a WPI rating can be based on a poor surgical outcome.

7. “Thirty years factory worker, factory closes, age 69, no history of orthopedic complaints, [now] total body pain (neck, back, knees, hips, feet, hands); x-rays = degenerative changes to multiple joints. Apportion continuous trauma? vs. age degenerative disability?”

“How to apportion pre-existing conditions, degenerative spinal condition to cumulative spine injuries?”

“Is it still a relevant factor [for apportionment] whether the non-industrial portion of the impairment would have happened by the P&S date even absent the industrial injury which was relevant under the old 4663?”

These first two were separate questions from different physicians but they are really the same question: How does a physician separate the natural degenerative process from the degenerative process from an arduous job? First of all, there is no simple answer to this. Each case has to be evaluated by its own merits – the medical findings on examination, the Applicant’s vocational and medical history, the level of arduousness of the job, how long the patient worked an arduous job, and the diagnostic studies. Remember: There are separate analysis for causation of injury and causation of disability. The medical literature is also helpful.

There are age related degenerative changes that occur in some patients where there are no signs, symptoms, or complaints or medical treatment for those changes despite access to treatment over the years. Medical literature supports apportionment to obesity for knee impairments but not for spinal degeneration. So each case has to be looked at individually. A 69 year old laborer may have 80% apportionment to the industrial cumulative trauma exposure and 20% to long standing degenerative joint disease, or the other way around, or 50%-50% or 90%-10% or 10%-90% or 60%-40% or in any other combination. Our panel would like to point out that in the Benson case, [Benson v. WCAB (2009) 170 Cal. App. 4th 1535, 89 Cal. Rtpr. 3d 166, 74 Cal. Comp. Cases 113], Ms. Benson’s apportionment for her post fusion cervical spine could have been properly analyzed in many different ways. Remember, she was a medical records clerk for many years. Dr. Izzo felt that 50% was due to a specific injury (reaching overhead for a medical chart), 50% due to cumulative trauma, and 0% to non-industrial factors. He could have easily concluded that 100% of her disability was caused by industrial factors and 0% by non-industrial factors. It all depends on how the physician puts the analysis together.

Analysis of apportionment is multifactorial. As long as the physician explains his or her conclusions about apportionment, then the conclusions will hold up at the WCAB as substantial medical evidence. However, a physician cannot apportion to a patient’s age alone – that is improper apportionment and is not allowed by statute or by case law. See Vaira v. WCAB (2008) 72 Cal. Comp. Cases 1586 (court of appeal opinion not published in the official reports).

The last question on apportionment invites violation of the current version of Labor Code Section 4663 – the old version of that statute does not apply at all. The physician has to start with the current industrial injury and work backwards, unless there is a subsequent injury. The physician shall determine first and foremost what the current WPI rating is under the AMA Guides. Then the physician has to indicate, with reasonable medical probability, approximately what percentage of the Applicant’s current disability is directly caused by industrial exposure and approximately what percentage is caused by “other factors.” The physician has to indicate in his or her report exactly what “other factors” are. They can include any of the following: a previous work injury, previous pathology, previous non-industrial injury, or subsequent injury (either industrial or non-industrial).

8. “I am often asked if an individual’s psychiatric disability combined with the physical disability renders the individual 100% disabled. If there any guide for this analysis?”

Hypothetically a physician can opine that a person is physically and mentally unable to work or to compete in the open labor market or has a total loss of earning capacity. This is true only if the psychiatrist has reviewed all of the treating and evaluating reports from all specialists. The 2015 PDRS states that a person’s disability rating can range from 0% to 100% even though Labor Code Section 4660.1 no longer defines the term “permanent disability” for injuries occurring on or after 1/1/13.

There are cases that recognize a 100% permanent and total disability award based strictly on the opinions of evaluating physicians. See, e.g. G4 Secure Solutions vs. WCAB (Simone) (2015) 80 Cal. Comp. Cases 823 (Writ Denied); [Simone v. G4S Secure Solutions (2015) WCAB Panel Decision, 2015 Cal. Wrk. Comp. P.D. LEXIS 449]. See also, Oakland Raiders v. WCAB (Gilbert) (2012) 77 Cal. Comp. Cases 457 (W/D); County of Los Angeles v. WCAB (LeComu) (2009) 74 Cal. Comp Cases 645 (W/D). Also, See Barrett Business Services, Inc. vs. WCAB (Gallagher) (2013) 78 Cal. Comp. Cases 1318 (Writ Denied). These cases except Gallagher are 100% permanent total disability cases under Section 4662(b) without vocational expert evidence.

In other cases, a vocational expert is needed to determine if the Applicant is amenable for retraining. In the cases where the physicians alone conclude that the Applicant is permanently totally disabled, there are clear medical reasons why that person can never work again. In other cases, a physician may feel that a vocational expert should evaluate the Applicant and the parties send that expert’s report to the evaluating physician(s) for commentary. See the Gallagher case above, See also Acme Steel v. WCAB (Borman) (2013) 218 Cal. App. 4th 1137, 78 Cal. Comp. Cases 751 in which the WCAB held that a vocational expert must take into consideration in his or her conclusions the physician’s discussion of apportionment under Labor Code Sections 4663 and 4664.

9. “In internal medicine injuries can we still use the “absent the industrial stressors, the natural progression of the disease [process] would be…” The subtraction method for apportionment?”

There is considerable uncertainty about what the natural progression of an internal medical condition would be. This includes cardiovascular hypertension disease, heart disease, pulmonary disease, or any other disease which can wax and wane depending on when the condition is diagnosed and what treatment can be administered. Lawyers and judges get nervous when a doctor wants to use some sort of “subtraction method” to apply apportionment.

Labor Code Section 4663 apportionment requires the physician to tell us approximately what percentage of the Applicant’s current disability is caused by industrial exposure and approximately what percentage is caused by “other factors.” “Other factors” in the context of an internal medicine case can be other risk factors for that condition that is probably causative such as a significant smoking history, family history, lifestyle choices [lack of exercise, poor diet with too much sugar, alcohol, and/or fat intake, etc.]. Job stress or chronic pain from an industrial injury can also be causative. So it is the PQME or AME’s responsibility to take these factors into account and give us the best estimate of the percentages of causation. The Escobedo and Gatten cases, though orthopedic cases, do apply in all other cases including ones involving internal medicine. See Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604 (WCAB en banc decision); E.L. Yeager v. WCAB (Gatten) (2006) 145 Cal. App. 4th 922, 71 Cal. Comp. Cases 1687.

Labor Code Section 4664 allows a “subtraction method” if and only if the defendant is able to prove the existence of a prior award of permanent disability for the same body part or system, and the prior impairment overlaps with the current one. The analysis is complex because the current PQME or AME has to review and understand the basis of the prior award including the actual WPI ratings and how they were arrived at.

10. “You didn’t really fully explain when you use addition vs. combined values. What cases do you use additions?”

In the Kite case, [Athens Administrators v. WCAB (Kite) (2013) 78 Cal. Comp. Cases 213 (W/D)], the Applicant had bilateral hip replacements, one with a poor result [he still had to use a cane post arthroplasty], and the other with a fair result. His use of a cane caused left shoulder and wrist problems. The idea here is that with a single hip or knee replacement, the person can rely on their “good side” while they get acclimated to the arthroplasty on the other side. This Applicant did not have that ability since he had bilateral arthroplasties. In addition, the poor result on one side required him to use a cane to ambulate, resulting in additional impairment and disability to his left shoulder and wrist.

The physician in this case opined that the fact that the Applicant had bilateral arthroplasties with less than good results coupled with the additional burden of having shoulder and wrist pathologies resulted in a synergistic effect causing significantly more disability than if there had been good results from the arthroplasties with no upper extremity consequences. He justified adding the impairments rather than using the Combined Values Chart on page 604 of the AMA Guides by opining that use of the CVC in this case would result in an inaccurate impairment rating and the more accurate rating would be to add them because of the synergistic effect of each impairment on the other and the Applicant’s significant loss of function. See also LACMTA v. WCAB (La Count) (2015) 80 Cal. Comp. Cases 470 (W/D).

11. “For temporary partial disability, if the QME is not presented with a copy of the Applicant’s job duties (a job analysis etc.), is the QME supposed to make a TPD determination specifically referenced to the Applicant’s job duties?”

“Re TPD, since the condition is, by definition, not stationary, how can a QME provide temporary work restrictions reasonably? A treater may evaluate every two weeks and adjust restrictions as indicated. A QME cannot do so and, in fact, the need for temporary restrictions may change substantially within the 30 day report time frame, not to mention in subsequent weeks/months.”

These were separate written questions that were submitted to the panel but upon closer inspection, I am convinced these two were written by the same doctor. The handwriting is too similar. In any event, an evaluating physician must comment on the Applicant’s current disability status as of the date of the PQME or AME examination. At that point, if the Applicant is not MMI, then the PQME should defer to the treating physician as to whether the Applicant can return to regular, modified, or alternative work with the appropriate work restrictions. The doctor who wrote the question the second time was beginning to get it.

At this point, if the Applicant is not MMI, the PQME or AME should pay attention as to why the referral to an evaluating physician was made – is there a dispute over MMI status? Is there a disagreement about parts of body injured in an admitted injury under Labor Code Section 4062? Does one party think the Applicant is MMI and the other does not? Attorneys and claims administrators have various reasons to send a case for a medical-legal evaluation. Make sure you know what you are being asked to do by one or both parties. That being said, a PQME can indicate a current disability status and an ability to return to regular, modified, or alternative work and to outline current work restrictions, if any, in order to assist the Applicant to transition back to work after an industrial injury.

12. “Does [a] psychotic breakdown at work because of inherent stress at work qualify as industrial causation?”

It depends. Remember, the medical evaluation of every psychiatric claim requires two separate and distinct analyses. The first is causation of the psychiatric injury under Labor Code Section 3208.3 and the second is causation of psychiatric permanent disability. The doctor’s question here refers to the analysis of causation of injury – whether actual events of employment are the predominant cause of all causes of a DSM diagnosis and those employment events are not lawful, non-discriminatory, good-faith personnel actions that are substantially causing the condition. There is no simple answer to this question because the analysis of causation of injury to meet the 51% threshold of compensability requires more information than what the question provides. However, the suggestion of a psychotic breakdown that is precipitated by work stress seems suspicious since psychoses are generally not caused by an industrial injury unless severe depression resulted in the psychosis. It is like what came first, the chicken or the egg?

The treating or evaluating physician would have to provide the parties with a list of actual events of employment, non-industrial factors such as a pre-existing DSM diagnosis that pre-dated the employment, and other factors that may be causing the DSM condition. The physician must ascribe percentages of causation of the DSM condition for each of the factors, both work related and non-work related, if any. If the work related events that are contributing to the cause of the DSM condition are equal to or greater than 51%, then there is industrial causation of the condition pursuant to Labor Code Section 3208.3. If the cause of the DSM condition involves 35-40% of actual events of employment that a judge has found were good-faith, non-discriminatory, lawful, personnel actions, then there is no industrial injury. So the analysis requires a ping-pong effect analysis between the judge as to what constitutes lawful, non-discriminatory good faith personnel actions and causation of the DSM condition, which is within the medical purview. A psychiatrist or psychologist is best to phrase his or her conclusions that “if the judge finds that these events were not lawful, good faith, non-discriminatory personnel actions, then the DSM psychiatric condition is industrially related” or vice versa. If you are a psychiatrist or psychologist, you must keep a copy of the Rolda WCAB en banc decision in your library and you need to read and re-read that decision every so often. See Rolda v. Pitney Bowes, Inc. (2001) 66 Cal. Comp. Cases 241 (Appeals Board en banc opinion).

13. “Can you comment on exacerbation vs. aggravation in psychiatric injuries?”

No comment. Just kidding. In the legal community, an exacerbation of any condition – orthopedic or otherwise, means that a new event or exposure has caused an increase in signs, symptoms, and complaints from a previous level to a higher level and those complaints eventually return to the baseline levels of signs, symptoms, and complaints by the time the Applicant is MMI. In contrast, if a new event or exposure causes a permanent increase of signs, symptoms, and complaints at the time of MMI, then there is an aggravation and the aggravation is a new injury, superimposed on the old one. However, this discussion has to be tempered by the analysis of causation of injury in psychiatric cases – is the current condition predominantly caused by actual events of employment that are not lawful, non-discriminatory good-faith personnel actions?

14. “Can causation be broken down into components or is it only the single cause, i.e., the straw that broke the camel’s back?”

The notion of causation of injury in non-psychiatric cases is very simple. If industrial exposure is a contributing factor to causing a medical condition, then there is causation of injury. Guerra v. WCAB (1985) 168 Cal. App. 3d 195, 50 Cal. Comp. Cases 270; McAllister v. WCAB (1968) 69 Cal. 2d 408, 71 Cal. Rptr. 697, 445 P.2d 313, 33 Cal. Comp. Cases 660; South Coast Framing v. WCAB (Clark) (2015) 61 Cal. 4th 291, 188 Cal. Rptr 3d 46, 80 Cal. Comp. Cases 489; Guerra v. WCAB (2016) 246 Cal. App. 4th 1301, 81 Cal. Comp. Cases 324. Causation of a physical injury does not need to be broken down into “components” of causation.

In psychiatric cases, causation has to be broken down as to what percentage of the cause of a DSM diagnosis for each component of actual events of employment and for each event outside employment.

15. “What about the legal concept of “harm” perhaps there may be or not, if [the Applicant’s] history is inconsistent with medical records?”

This question was prompted by the judge on the panel who discussed a case in which the Applicant gave a false or incomplete medical history to the PQME or AME who relied on the incorrect history, even though the medical records contradicted the Applicant’s version of the facts. The take-away of this point was to show that if a PQME or AME relies on an incorrect history, like here where the Applicant gives an incorrect history or a history that is inconsistent with the record, the PQME’s or AME’s conclusions do not constitute substantial medical evidence on which an award can be upheld. There is reversible error for a judge to rely on a medical report that is based on a patient’s incorrect history or that is inconsistent with medical records. It is up to both the doctor and the judge to determine resolution of the inconsistent history, if doing so is possible.

16. “Why should a specialist evaluating an add-on problem that is separate and independent of the main medical problem that is the predominate causative issue of the disability be compelled to determine the entire disability rating (WPI)?”

Whoever wrote this question must have been in a big hurry to send the panel this note. The best answer is that if the add-on part of body or body system is within the specialty of the PQME or AME, then he or she is qualified to address the additional part of body. Otherwise, the PQME or AME should defer discussion about causation, WPI ratings, and apportionment to a specialist who is more qualified to evaluate the additional part of body. It is the attorneys who are responsible for obtaining an additional PQME or AME in a different specialty if an existing PQME or AME indicate a preference to defer a question to another medical specialty.

17. “Can any of the panelists suggest a way for QMEs to get feedback on our reports? The alternative – we keep making the same errors over and over.”

Wow, kudos to this doctor! Every good physician is concerned about medical outcomes – e.g., did the surgery help the patient reduce pain and improve function? Physicians are very outcome oriented because most care about their patients. I have traveled all over California and to the National Workers’ Compensation and Disability Conference & Expo for many years. At virtually every seminar for medical-legal training, physicians want to find out about the outcomes of the cases in which they provide reports and/or expert testimony.

The workers’ compensation community should have a built in procedure or regulation that provides mandatory reporting back to evaluating physicians about the outcome of cases – even the ones that are settled – so that some feedback mechanism is provided on the issue of quality assurance. At the very least, sending a copy of settlement documents to an evaluating physician may help. For those doctors who receive copies of settlement documents it may prompt them to contact the handling attorney and communicate whether and how the medical-legal conclusions affected the outcome of the case. In cases that go to trial, and a judge or a WCAB panel comments on the credibility of a medical-legal report or medical testimony, the formal judge’s or WCAB panel written decision should be sent to the doctors involved in the case. However, there is no regulation or law that mandates any kind of quality control or feedback mechanism in this regard. It is probable that such a feedback mechanism could improve the quality of reporting and expert testimony of PQME and AME physicians.

Conclusion

In every medical or legal continuing education program, the presenters always have to struggle between completing their presentations on time in order to meet the expectations of the sponsor of the seminars and to entertain and educate the attendees versus answering questions from the audience. Presenters shy away from an open microphone for questions because time memoriam and experience show that inevitably some attendees would rather hear themselves speak and make comments rather than ask the panelists questions that are valuable to the audience. Taking the written questions from a bunch of panel QME physicians and turning them into an extension of our presentation in this article is both daunting and rewarding. I would like to thank the attendees of the recent medical seminar – you know who you are – for sending our panel these questions. We look forward to future programs wherein we can provide a post-seminar discussion of issues that are important to the attendees where we run out of time to address those issues during the seminar.

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