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Thread Title: 24 Chiro visits pre SB899?
Created On Sunday February 22, 2009 7:38 PM


laesquire
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Sunday February 22, 2009 7:38 PM

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SCENARIO:

1. 5 different Chiros on one case rack up a very large bill.
2. Injury is before SB899.

QUESTION:

1. Are their any cases holding 24 visits should be applied to pre SB899 date of injuries?

If so please cite.


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Any posting herein is NOT legal advice. It also does NOT create and attorney-client- relationship.

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jonbrissman@verizon.net
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Sunday February 22, 2009 8:08 PM

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No, there are no cases that apply the 24-visit cap retroactively. I seem to recall that the cap was part of SB228, effective 01/01/04, and not SB899, effective 4/19/04. Because it was enacted as emergency legislation, SB899's provisions were either (1) intended to be retroactive, or (2) judicially applied retroactively. Not so with SB228.

The best way to fight these liens is with the ACOEM guidelines, which were judicially interpreted to be retroactive in Sierra Pacific v. WCAB (Chatham), 2007. You will need to obtain a medical report that comments on the medical necessity of the treatment and conformance with ACOEM. Ideally, the physician should examine the patient, review the entire medical record, and ask the patient about conditions which could justify a variance to the ACOEM guidelines, then issue a comprehensive report.

In my experience, adjusters and/or defense attorneys have been unwilling to spend the time, effort, and expense to obtain the supplemental report described above. They figure that they can simply present the bills and the ACOEM guidelines to a WCJ and -- presto! -- they'll get the liens disallowed. In fact, they are disappointed -- the ACOEM guidelines are to be interpreted by physicians, and they are not a tool for claims adjusters, defense attorneys, or WCJs.

So unless you're prepared to invest in a comprehensive supplemental report, just negotiate and settle with the providers. The 24-visit cap won't help you.

JCB

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arcite1@earthlink.net
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Monday February 23, 2009 10:16 AM

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Your response/answer is correct but the analysis isn't. The ACOEM Guides are retro to all dates of injury by decree of the AD, i.e. a new reg passed sometime in 2008. By way of history, when I was with Vince Scotto's office in Martinez I had a case go to the court of appeals over the procedure for the second opinion for spinal surgery and the applicability of the ACOEM Guides after 90 days. At that time we had a couple of Board level decisions which held that ACOEM wasn't applicable after the first 90 days. At any rate, the case, which was argued very well by Alison Gude after I left that office, resulted in citable authority on the issues of procedure for second opinion for spinal surgery and ACOEM's inapplicability after 90 days. Laing v. WCAB, (6/2007) 35 CWCR 175. Shortly thereafter, the conflicting decision was issued in Sierra Pacific Industries v. WCAB (Chatham) in 12/2007. Subsequently the conflict became moot, when the AD issued the revised regulation. As to the substance of the adjusters issue with ongoing chiropractic treatment or physical therapy, if you are up against a pro per applicant you can probably get a supplemental by some former AME, who is trying to get to the middle to sell his or her services, or some random Panel QME, who may or may not understand the old law let alone the new law, you may be able to get them to shut down additional "therapy." However, realistically, there are multiple evidence based nationally recognized peer reviewed guidelines which support short courses of treatment for future flares as opposed to ongoing palliative care or what many injured workers call maintenance. So why not try to make a deal for a limited number of visits/treatments per year?

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ymcgavin@socal.rr.com
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Monday February 23, 2009 5:23 PM

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Hi Arcite,

You stated: " The ACOEM Guides are retro to all dates of injury by decree of the AD, i.e. a new reg passed sometime in 2008."

I'm gonna call you out on this reg and request the citation, as I have yet to see it.

The response and analysis by Jon is as correct as the day is long --- and he is indeed familiar with the Sierra Pacific case.

In regards to Sierra Pacific, my company earned the only footnote, as we filed one of the amicus curiae briefs addressing the issue of applying ACOEM prospectively to treatment furnished prior to the publication date of ACOEM would have violated the maxims of jurisprudence, specifically Civil Code Section 3531, codified in 1872 --- in that it required physicians to clairvoyantly treat pursuant to a guideline that had yet to be published --- an impossibility.

The appellate justices got squirrelly, and totally dodged addressing that issue, big time.

York McGavin
ymcgavin@socal.rr.com

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jakelast@aol.com
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Monday February 23, 2009 7:25 PM

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I Agree with Jon and York on the applicability of the ACOEM guides to the pre-1/1/04 TX. and that the Chatham case resolved that issue.

However I have one area of disagreement with Jon's analysis.

While I think it is highly recommended that a physician be available to comment on the MTUS when possible, I am not at all certain that it is required. the Medical Treatment Utilization Schedule is always in evidence as it is the presumptively correct standard for medical treatment. The MTUS must be rebutted by the party seeking to avoid its application with scientific medical evidence that the MTUS should not apply. As WCJ, as the finder of fact, has the legal authority to interpret the presumptively correct legal standard and see if the treatment conforms to it. The rub is that one more or less has to accept whatever the wcj decides in that circumstance. I believe a WCJ can reject the opinion of a physician as to the application of the schedule where he/she determines the opinion is medically or legally deficient.

I am not recommending that as a matter of practice, a defendant should go before the wcab without a medical expert on the application of the guides. Just that in a pinch, if one is stuck and cannot present an expert, the MTUS itself is always in evidence and can be applied by a WCJ (actually MUST be applied by a WCJ absent any rebuttal evidence).

However be careful what you ask for as you may get it. A WCJ's interpretation may not agree with your own.

Jake Jacobsmeyer
Shaw, Jacobsmeyer, Crain, Claffey & Nix

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laesquire
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Monday February 23, 2009 9:23 PM

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Good posts. Thank you.


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Any posting herein is NOT legal advice. It also does NOT create and attorney-client- relationship.

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jonbrissman@verizon.net
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Tuesday February 24, 2009 11:30 AM

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Jake, I was paraphrasing from a case entitled Finklang v. American Home Assur. Co., Order Denying Reconsideration, 34 CWCR 52 (2006), which says:

"The WCJ rejected petitioner's assertion that all one had to do was consult the ACOEM text to determine its applicability. Claims administrators, lawyers, and WCJs are not medical experts capable of analyzing issues of diagnosis and treatment without evidence from medical experts."

I recognize that an Order Denying Reconsideration is weak authority. Nonetheless, I am aware of no authority which says that WCJs are capable of making medical determinations about applicability. Remember that ACOEM and MTUS are guidelines from which treatment may deviate when medically appropriate, and who could determine that appropriateness other than a physician?

In the Sierra Pacific v. WCAB (Chatham) case, one of the post-Supreme-Court developments took the case back to the WCAB. The Commissioners interpreted ACOEM themselves in a Decision Upon Reconsideration, and later vacated their ruling when it was pointed out in a petition for reconsideration that the Commissioners were not medical experts capable of interpreting ACOEM. The parties later obtained medical reporting on the issue.

It would not surprise me if one or several WCJs arrogated the power to interpret ACOEM themselves. I believe that their decisions based thereupon may be successfully challenged.

JCB

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ymcgavin@socal.rr.com
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Tuesday February 24, 2009 7:07 PM

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Hi Jon and Jake,

To quote from the brief that got the Commissioner's to reverse themselves in Sierra Pacific:

In Kiewit Sons v. IAC, (1965) 30 CCC 188, the Third District Court of Appeal was faced with a medical dispute, and the WCJ resolved the dispute in the absence of any substantial medical report that the injuries were industrially caused. The aggrieved defendant petitioned for reconsideration, and the WCAB affirmed the WCJ. The defendant then sought a writ of review, and the appellate court annulled and remanded. As is germane to the instant matter, the opinion from the Justices of the Third District Court of Appeal stated:

"Where an issue is exclusively a matter of scientific medical knowledge, expert evidence is essential to sustain a commission finding; lay testimony or opinion in support of such a finding does not measure up to the standard of substantial evidence. (City & County of San Francisco v. Industrial Acc. Com., supra, 117 Cal.App.2d at pp. 459-460; Guarantee Ins. Co. v. Industrial Acc. Com., 88 Cal.App.2d 410, 413 [199 P.2d 12]; Pacific Emp. Ins. Co. v. Industrial Acc. Com., 47 Cal.App.2d 494, 500-501 [118 P.2d 334].) Expert testimony is necessary "where the truth is occult and can be found only by resorting to the sciences." (State Comp. Ins. Fund v. Industrial Acc. Com., 195 Cal. 174, 184 [231 P. 996].)"
(Ibid, at page 192)

"Back disabilities in particular shout loudly for expert advice. No human ailment has produced more medicolegal headaches than the aching back. This delicately articulated structure of nodulated bones, cushioned by cartilaginous bodies and gelatinous material, interlaced by the complex and sensitive fibers of the cerebrospinal nervous system and held in array by strands and cords of muscular and ligamentous tissue, is vulnerable to a vast and bewildering variety of traumatic, pathological, deteriorative ailments and neurotic manifestations, singly and in diverse combinations. Precise diagnosis often baffles neurologists and orthopedists. In assessing the respective roles of trauma and predisposing conditions and of objective and subjective complaints, subtle value judgments may be unavoidable. In the face of this anatomical, physiological and psychological intricacy, semantically dubious, pseudomedical jargon infiltrates the conflux of medicine and jurisprudence. Whiplash, traumatic arthritis, traumatic neurasthenia and railroad spine are solecisms in current or past fashion. These verbal conveniences tempt the medically untrained into complacent substitution of simplicity for complexity. In a field which forces the experts into hypothesis, unaided lay judgment amounts to nothing more than speculation."
(Ibid, at page 193)

Thus, although Finklang may only be a mere panel decision, reported in the CWCR, there is indeed higher compelling authority on the issue of a layperson, such as a WCJ, interpreting ACOEM. Simply put, a WCJ can indeed weigh competing medical reports and choose which is the more substantial. (Place) However, in the absence of any medical reporting addressing a medical dispute, a WCJ would be remiss in substituting his/her lay opinion. Expert testimony is necessary "where the truth is occult and can be found only by resorting to the sciences."

Gee, if a WCJ opined on WPI or apportionment, absent a medical report addressing the disputed issue, the opinion from the WCJ is not substantial evidence.

I encounter this issue day-after-week-after-month-after-year. Routinely, neither the PTP, a QME, nor an AME, addresses the reasonableness of a TENS unit per LC 4600(b). When all medical reports are silent in regards to the provision of a TENS, we simply get a supplemental report from one of those physicians --- at the expense of the defendant.

York McGavin
ymcgavin@socal.rr.com

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mkomkom
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Wednesday February 25, 2009 9:23 AM

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We've discussed this before and I think Stew was taking Jake's position. I have to agree with York and JCB. If an issue is within the peculiar knowledge of an expert, then expert testimony is required. Moreover, lay testimony, or an opinion from a judge, testimony by a lien claimant, is not sufficient to overcome the expert opinion (so long as it constitutes substantial evidence). See Simpson.

I would argue that there is a reason nurses are not allowed to write UR reports. They are required to be drafted by MDs because application of ACOEM requires an expert.


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This is not legal advice. It is the opinion of "mkomkom", who is not even real.

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