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How
to get the PTP Paid for a
Comprehensive Medical-Legal Evaluation
By Samuel R. Swift, Esq.
Sam Swift has been representing injured workers in Santa
Clara County since 1973. In this article he explains how to get
the Primary Treating Physician paid for narrative reports
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In this era of less than ideal QME
panels, it has become increasingly important to procure the opinion
of the Primary Treating Physician [PTP] on many issues, particularly
on treatment denials, disputes over AMA impairment ratings, and apportionment
battles. The problem we confront most often is how to get the PTP
paid a reasonable fee to take the time to address these issues. What
follows is an updated version of an article I wrote in 1996 which
outlines the steps necessary to have the PTP paid at QME rates for
issuing reports on disputed issues, including those mentioned above.
The primary treating physician is entitled to be paid a minimum of
$625 in most cases for issuance of a report which explains the basis
of a disputed treatment recommendation or which, when there is a dispute,
describes the nature and extent of permanent disability and/or apportionment.
The legal basis of this proposition is set forth in this article.
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The primary treating physician
is entitled to be paid a minimum of $625 in most cases for a report
which explains the basis of a disputed treatment recommendation or
which, when there is a dispute, describes the nature and extent of
permanent disability and/or apportionment.
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The rules of the Administrative Director
outline the reporting duties of the PTP at Title 8, California Code
of Regulations, §9785. Subsection (d) provides that the PTP "shall
render opinions on all medical issues necessary to determine the
employee's eligibility for compensation in the manner prescribed
in subdivisions (e), (f) and (g) of this section.”
Subsection
(e) requires the PTP, within 5 days of the initial exam, to report,
among other things, on the methods, frequency, and direction of planned
treatment, and 9785(f) requires the PTP to report, within 20 days,
on any change in said treatment plan. Section 9785(g) provides that
when the physician determines that the employee's condition is permanent
and stationary, the physician shall report any findings concerning
the existence and extent of permanent impairment and limitations
and any need for continuing medical care resulting from the injury."
Section
9785(i) requires payment under the OMFS. Thus, the Official Medical
Fee Schedule covers mainly the Doctor’s First Report of Work
Injury, the PR-2's, & the PR-4. |
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Requirements
of a “Comprehensive Medical-Legal Evaluation" [CME]
However, Sections 9793 and 9794 provide a method for reimbursing
the treating physician at rates which are 100% of the Medical
Legal Fee Schedule when the physician performs a Comprehensive
Medical-Legal Evaluation [CME], Section 9793(c) defines the
CME as an evaluation of an injured worker which results in the
preparation of a narrative medical report, and is performed by
the PTP for the purpose of proving or disproving a "contested
claim" and which meets the requirements of Section 9793(g)(1)
through (5).
Section 9795(b) defines a “contested claim”, which
includes, under Section 9793(b)(4), the situation in which the
claims administrator has accepted liability for a claim and a "disputed
medical fact" exists.
Section 9793(e) defines a "disputed medical fact" as
an issue in dispute concerning "(1) the employee’s
medical condition, (2) the cause of the employee’s medical
condition, (3) treatment of the employee’s medical condition,
or (4) the existence, nature, duration or extent of temporary
or permanent disability caused by the employee's medical condition.” [My
emphasis]. In my view, the issue of permanent disability includes
the issue of apportionment.
Thus, the treating physician can avoid the limitations of the
Official Medical Fee Schedule for his/her narrative report regarding
the employee’s medical treatment or nature and extent of
permanent disability if the report qualifies as a CME. In addition
to addressing a "disputed medical fact", the report,
in order to be payable as a medical-legal expense (i.e., is a
CME), must also meet the requirements set forth below.
Section 9793(g) defines a medical-legal expense as including
any cost or expense, incurred by or on behalf of any party or
parties, for medical reports for the purpose of proving or disproving
a contested claim, which also meets the following requirements:
- The report is prepared by a physician.
- The report is obtained
at the request of a party or parties for the purpose of proving/disproving
a contested claim and addresses the disputed medical fact(s)
specified by the party who requested the CME report.
- The report
is capable of proving or disproving a disputed medical fact essential
to the resolution of a contested claim, considering the substance
as well as the form of the report, as required by applicable
statutes, regulations, and case law.
- The medical-legal exam
is performed prior to receipt of notice by the physician, the
employee, or the employee's attorney that the disputed medical
fact(s) for which the report was requested have been resolved.
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Section 9794(a)(2) provides that the
cost of a CME shall be billed and reimbursed in accordance with the
fee schedule set forth in Section 9795. Section 9795 sets the payment
rates for medical-legal evaluations performed by AMEs and QMEs. This
section now also applies to CMEs. The minimum fee is $625, which
is for a report which qualifies as an ML-102. If the report meets
the requirements of an ML-103, the fee is $937.50. Section 9795 now
includes a specific reference to the issue of the denial or modification
of treatment pursuant to Labor Code Section 4610.
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Conclusion
The bottom line is that
the treating physician issuing a report on disputed medical treatment
or disputed permanent disability/apportionment may bill a minimum
of $625 for said report, as long as the report is requested by a
party, includes an exam, and addresses the disputed medical fact(s)
specified by the party. Otherwise, the physician’s fee is limited
by the Official Medical Fee Schedule.
In light of the multitude of
UR denials of treatment and disputes regarding impairment rating
and apportionment, it is far better for the injured worker to have
his or her PTP spend, and be paid for, the time necessary to fully
describe the reasons for the recommended medical treatment or the
basis of the impairment rating and/or apportionment opinion.
The
key is that there must be a dispute (i.e., a disputed medical fact),
the PTP must receive a request for the CME from a party (the injured
worker, injured worker’s attorney, or defendant), and the PTP
must perform an exam in connection with the request. If these requirements
are met, then the PTP shall be paid for the report in accordance
with the medical-legal fee schedule set forth in Section 9795.
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The PTP shall be paid for the
report in accordance with the M/L fee schedule set forth in Section
9795, provided
1) there is a disputed medical fact,
2) the PTP received
a request for the CME from the injured worker, injured worker’s
attorney, or defendant, and
3) the PTP performed an exam in connection
with the request.
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Samuel R. Swift has been practicing law since 1973. He is
co-editor of Med-Legal’s Quick Reference, active on various committees
of California Applicants’ Attorneys Association (CAAA) and
a frequent panel member at CAAA conventions and seminars.
To contact Samuel Swift:
Samuel R. Swift, Esq.
2102 Almaden Road,
Suite 103
San Jose, CA 95125-2104
Tel: 408-723-2102
Fax: 408-723-2141
samswift@ix.netcom.com
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