Using AD Rule 9785 Regain Medical Control in California

AD Rule §9785


Administrative Rule §9785 was revised 1/1/99 and substantially changed. The purpose of §9785 is to advise the Primary Treating Physician (PTP) of his medical reporting requirements. It is also used to enforce the standards and provide the Defendant with proper progress and status reports. Obviously, timely and complete status reports are necessary to monitor the injured worker's recovery and allow the carrier/employer to provide the necessary benefits to the employee. This compliance benefits all involved parties.


In order to enforce compliance by the PTP and guarantee that timely reporting is available for the Defendant, the Administrative Director (AD) has also provided §9786 to allow the involuntary Change of Treating Physician by Petition upon a clear showing of non-compliance. The Petition is generally filed on DWC Form 280 and lists 5 employer-designated Physicians in the proper geographic area and specialty. Upon successful Determination by the Administrative Director, an Order is issued directing the Applicant to choose one of the 5 listed physicians for all future treatment. This is the culmination of your hard work, as you will see below.



The most prudent course of action on an admitted injury is to advise the designated physician of his rights and obligations immediately upon notice of his name and address. The Defendant should notify the initial employer-provided physician as quickly as possible, both to prevent misunderstanding and to educate the ignorant physician who may not provide Workers' Compensation treatment on a frequent basis. It is not uncommon for an Applicant to forge a relationship with the occupational or urgent care doctor, only to find out that the medication and therapy are continuing without written status. Immediate notice to the treating doctor usually prevents this omission.

As we all know, the 30 days of medical control elapse quickly, even in the best of circumstances. Labor Code §4600 allows the Applicant to change the Primary Treater 30 days after reporting the injury.

The Primary Treater is frequently changed immediately upon legal representation, so that TD and other benefits may be maximized. In Southern California, the treatment is routinely changed to a common group of infamous physicians that may be referred to as the "Dirty Dozen." For some reason, 30% of all W/C cases south of Santa Barbara land in the offices of the same handful of physicians. If these doctors worked 18 hours a day and spent 5 minutes per patient, they could treat about half of the load that they carry.

As a result, the treatment may be excellent (?), but the reporting routinely falls below the required level of §9785 compliance.

Since I know from experience that the reporting of "the usual suspects" will statistically fail, I immediately send out a §9785 welcome letter to the designated Primary Treater when a litigation file is opened. An attachment to the letter is the text of §9785 so that there is no misunderstanding regarding my interpretation of the terms. By experience, they never read the statute, and they are now charged with legal notice. I even find the letter in SDT (subpoenaed) records from the doctors on a regular basis, which usually cements the issue on petition.



Although the list is long, a Physican's Assistant (PAC) does not currently meet the standard of a physician for the purposes of reporting. The situation arises relatively often when a PTP is designated by the Applicant, and either a different physician or a physician assistant will issue status reports on behalf of the PTP. Through multiple petitions, I have identified that the colleague physicians may be delegated to issue PR-2 or narrative reports on behalf of the designated physician, but the PAC may not. It all comes down to whether the signatory meets the definition of a physician under §3209.3. I have had very good luck with removing care from physicians that use PA employees to issue periodic reports. One physician (call me) has even testified in Deposition that he is in the Building, but does not watch the evaluations by his PAC. This type of revelation under oath is useful in enforcing the requirements of §9785 in the doctor's own words.



Within 5 working days following initial examination, a primary treating physician shall submit a written report to the claims administrator on the form entitled "Doctor's First Report of Occupational Injury or Illness," Form DLSR 5021. Emergency and urgent care physicians shall also submit a Form DLSR 5021 to the claims administrator following each visit. On line 24 of the Doctor's First Report, or on the reverse side of the form, the physician shall (A) list methods, frequency, and duration of planned treatment(s), (B) specify planned consultations or referrals, surgery or hospitalization and (C) specify the type, frequency and duration of planned physical medicine services (e.g., physical therapy, manipulation, acupuncture). AD Rule §9785(e)(1).

It is necessary for each new PTP to issue a Form 5021 upon taking over care. The required information is specifically noted to require a treatment plan with notation of any therapy needed. It is prudent to demand a Treatment Plan from the Primary Treater upon designation. Most physicians will not issue all of this information within the first 5 days as required, and your demand will demonstrate early deficiency. If a notice of the requirements was previously provided to the physician, the AD may entertain a §9786 Petition after 30 days. This is a short time to wait, and a failure of the PTP to respond to the Administrative Director will likely result in a favorable Determination.

The status reports must be issued on a PR-2 form or in the form of a narrative report. If a narrative report is used, it must be entitled "Primary Treating Physician's Progress Report" in bold-faced type, must indicate clearly the reason the report is being submitted, and must contain the same information using the same subject headings in the same order as Form PR-2. The PTP may use the standard format of the PR-2, but cannot use a check-the-box form other than the actual PR-2. Substantial compliance is accomplished only by using the correct form, or issuing a narrative report with the same headings and information.

The physician must issue the PR-2 with an original signature. Form PR-2 specifically prohibits a signature stamp, and any narrative report must likewise carry an original signature. After taking notice of this requirement, you will notice the amount of reports from all physicians that lack an original signature. This is a "curable defect" that can be remedied by sending an original signature on the report upon notice of the deficiency. Advise the doctor by supplemental letter of the need for original signatures, and 10% will correct the reports. Another 20% or so will respond to the §9786 Petition with original signatures when they find out they may be removed. Barring procedural defects in the Petition, the rest will lose their status.

If the PTP requests additional consultations or tests, he is obligated to summarize the findings in his status reports. All physicians other than the PTP are "Secondary Physicians", and are not a replacement for PTP reporting or opinion. An additional ground for a §9786 Petition is that the PTP has received consultations or testing which have not been incorporated into his treatment or reporting within a reasonable (45-60 days?) period of time.



Administrative Rule §9785 used to require reports every 45 days or 12 visits, whichever occurred first. With the 1/1/99 revisions, the additional standard of 12 visits was removed. The PTP now must report every 45 days on a minimum. I have found that the dates of the reports and the dates of service can vary by up to 90 days. This is problematic for enforcement purposes, so I track both of the dates. The AD will require 2 separate violations of the 45 day interval requirement, so I just track both the report and service dates. When the PTP has failed to report on 2 occasions by the same standard, the 9786 Petition is filed. The PTP can issue 2 separate reports more than 45 days apart, or can fall asleep at the wheel for 90 days straight without a report. The result is the same on my end. This happens on about 30-40% of my litigated cases, and is actually the best reason for a tight diary system.

The beauty of §9785 is that the requirements cannot be satisfied on a retroactive basis. Once a valid Petition under §9786 has been filed, the PTP is generally on his way out. The only real exception is if the PTP submits original signatures to previously timely reports. Otherwise, our untimely doctor looking at a short-term relationship with the Applicant.



The DWC has taken the time to provide a standard form DWC 280 for the purpose of requesting a change of treating physician, and you are best served to use it. After filling out the names of all parties, you are requested to identify the name and specialty of the current PTP.

The bottom of page one (1) allows you to list 5 physicians in the correct specialty that are within a reasonable geographic area of the Applicant. 40 miles is a good rule of thumb, but rural areas may be greater. These physicians are usually competent, conservative doctors that are known to report in a timely manner. The Specialty of each physician on page 1 must be listed, or the Petition is subject to Dismissal. Obviously you would choose 5 Orthopedic Surgeons if the Applicant was treating with an Orthopedic Surgeon. The only wrinkle is that at least one (1) Chiropractor must be offered if the Applicant is currently treating with a Chiropractor. You may list Orthopedic Surgeons in the other four (4) slots, and that is my recommendation. They are more versatile and seem to treat / release much sooner in my experience.

Page two (2) of the DWC 280 allows a paragraph or two for outlining the reasons that support your request. I have a standard format that has been successful in the past, and allows me to move these matters along. You must indicate that the PTP was notified of his obligations, and either failed to respond to reasonable requests, is geographically unreasonable, or has issued untimely reporting on a repeated basis. You do not need a book, so brevity is appreciated at all levels. For your benefit, I have listed a generic format that I modify slightly based on the facts of the case.


Applicant designated Doctor Jones as his primary treating physician by letter of 1/1/99. Exhibit A. Doctor Jones was advised of his duties and obligations under §9785 by letter of 1/3/99. Exhibit B.

Doctor Jones issued reports of 1/17/99, 3/15/99 and 5/13/99. All reports of Doctor Jones are attached to this Petition. Doctor Jones is located 210 miles from the Applicant's residence. Defendant alleges that the reporting of Doctor Jones has exceeded 45 day intervals on at least two (2) occasions, and is geographically unreasonable. Defendant seeks relief under AD Rule §9786.

I have submitted many of these Petitions, and have now streamlined the process to a system. There is a pile of Denied petitions in my drawer outlining that the simple things result in the most problems. Here are the mistakes I made initially, to prevent you the same experience.

  1. The PTP must previously be advised of his §9785 obligations in writing. This results in approximately 75% of the current AD Denials.
  2. The 1/1/99 text of §9785 should now be included with your letter recognizing his PTP status.
  3. The specialties of the PTP and all offered physicians must be listed.
  4. One Chiropractor must be listed if the Applicant currently treats with a Chiropractor.
  5. The Petition must be forwarded to the Administrative Director (not the local WCAB).
  6. All medical reports of the PTP must be attached so that the Administrative Director may evaluate the reporting intervals.
  7. If you are alleging a failure to incorporate secondary (consulting) reports by the PTP, the consulting reports must be attached with proof of service showing someone provided them to the PTP.
  8. If the allegation is unreasonable geographic distance between the Applicant and PTP, give an indication of the mileage. The AD is in San Francisco and may not drive from Baker to Indio on a regular basis.
  9. The Petition must be served on the PTP and Applicant or counsel at the time of filing. A Proof of Service is necessary. They both have a right to respond, and may have additional reports that you do not have.
  10. The PTP has an obligation to serve the reports on Defendant. He does not have an obligation to serve them on all parties. If you fail to provide the reports to your Defense attorney, we both may look foolish in the end when the PTP submits multiple reports that he has filed and I have not seen.
  11. The DWC 280 form may have an attached Affidavit if you wish to get verbose. Any Affidavit must have be verified (signed under penalty of perjury), just like the standard form. Sign the form. Don't start over in 60 days because you forgot to sign your name the first time.



This is usually not problematic. Both the PTP and Applicant have a right to respond to the §9786 Petition with additional evidence or argument within 20 days. They usually do not know what to do, and routinely fail if they try. Any response to the Petition must be verified under penalty of perjury (just like our Petition). My experience bears out that the major Applicant firms don't train their paralegals to correctly respond, and the minor players don't verify their attempts themselves.

My §9786 Petitions have been answered by the biggest firms in the state, and only about 10% of the attorneys will submit an Answer that also includes a verification. I trust that the allegations of inadequate reporting are correct in the majority of cases, and the attorneys decide to wait for the result. I have never seen an Applicant submit a verified Answer, although a few Answers have been submitted within the 20 day window. These are generally limited to the "I love my doctor, and he understands me" line of defense.

The path is pretty much paved after the valid Petition is submitted.



The AD has 45 days from receipt of the Petition to Grant/Deny your request. The 45 days runs from when it is stamped in and there can be up to 5 days mail time on either end. I recommend calling the AD office 45 days from your mailing, so that they surface the Petition for the decision in the next 3-5 days. They are usually pretty good about knowing where the Petitions are.

If the AD becomes swamped, a 30 day extension to the decision period may be imposed by the office. This happens less than 5% of the time in my experience, but may happen more as the army of claims adjusters inundate the AD with the piles of untimely medical reporters.



This is usually where the Applicant attorney wakes up. He did not monitor the reporting, did not read your Petition, did not respond, and did not attempt to designate a different physician. Now the Applicant is wondering why he is being torn away from the TD breast of Doctor Jones. Action must be taken. He may file an Appeal with the WCAB branch requesting a Hearing with a DOR. The process is similar to a Rehabilitation Appeal. If no DOR is filed, the matter will likely sit around until the Defense files to enforce the Order Granting the change of PTP.

Since the Applicant/Attorney usually is confused or overworked, I will file the DOR for them if an Appeal is submitted. We all win when the matter is finally resolved, and I already have the momentum. I have yet to have a WCJ reverse a favorable AD Determination at Trial.

The Carrier has no obligation to pay for treatment of the PTP following the favorable determination of the Administrative Director. I recommend that an objection to all further treatment be forwarded to the former PTP with a copy of the Determination. You will have to pay for the past treatment, but you already knew that.

© 2000 George E. Corson IV


§9785. Reporting Duties of the Primary Treating Physician

(a) For the purposes of this section, the following definitions apply:

(1) The "primary treating physician" is the physician who is primarily responsible for managing the care of an injured employee and who has examined the employee at least once for the purpose of rendering or prescribing treatment and has monitored the effect of the treatment thereafter. The primary treating physician is the physician selected by the employer or the employee pursuant to Article 2 (commencing with section 4600) of Chapter 2 of Part 2 of Division 4 of the Labor Code, or under the contract or procedures applicable to a Health Care Organization certified under section 4600.5 of the Labor Code.

(2) A " secondary physician" is any physician other than the primary treating physician who examines or provides treatment to the injured employee, but is not primarily responsible for continuing management of the care of the injured employee.

(3) "Claims administrator " is a self-administered insurer providing security for the payment of compensation required by Divisions 4 and 4.5 of the Labor Code, a self-administered self-insured employer, or a third-party administrator for a self-insured employer, insurer, legally uninsured employer, or joint powers authority.

(b) There shall be no more than one primary treating physician at a time. Where the primary treating physician discharges the employee from further treatment and there is a dispute concerning the need for continuing treatment, no other primary treating physician shall be identified unless and until the dispute is resolved. If it is determined that there is no further need continuing treatment, then the physician who discharged the employee shall remain the primary treating physician. If it is determined that there is further need for continuing treatment, a new primary treating physician may be selected.

(c) The primary treating physician, or a physician designated by the primary treating physician, shall make reports to the claims administrator as required in this section. A primary treating physician has fulfilled his or her reporting duties under this section by sending one copy of a required report to the claims administrator. However, a claims administrator may designate any person or entity to be the recipient of the required reports.

(d) The primary treating physician shall render opinions on all medical issues necessary to determine the employee's eligibility for compensation in the manner prescribed in subsections (e), (f) and (g) of this section. The primary treating physician may transmit reports to the claims administrator by mail or FAX or by any other means satisfactory to the claims administrator, including electronic transmission.

(e) (1) Within 5 working days following initial examination, a primary treating physician shall submit a written report to the claims administrator on the form entitled "Doctor's First Report of Occupational Injury or Illness," Form DLSR 5021. Emergency and urgent care physicians shall also submit a Form DLSR 5021 to the claims administrator following each visit. On line 24 of the Doctor's First Report, or on the reverse side of the form, the physician shall (A) list methods, frequency, and duration of planned treatment(s), (B) specify planned consultations or referrals, surgery or hospitalization and (C) specify the type, frequency and duration of planned physical medicine services (e.g., physical therapy, manipulation, acupuncture).

(2) Each new primary treating physician shall submit a Form DLSR 5021 following the initial examination.

(3) Secondary physicians, physical therapists, and other health care providers to whom the injured employee is referred shall report to the primary treating physician in the manner required by the primary treating physician.

(4) The primary treating physician shall be responsible for obtaining all of the reports of secondary physicians and shall incorporate, or comment upon, the opinions of the other physicians in the primary treating physician's report and submit all of the reports to the claims administrator.

(f) A primary treating physician shall promptly report to the claims administrator when any one or more of the following occurs:

(1) The employee's condition undergoes a previously unexpected significant change;

(2) There is any significant change in the treatment plan reported, including, but not limited to, (A) an extension of duration or frequency of treatment, (B) a new need for hospitalization or surgery, (C) a new need for referral to or consultation by another physician, (D) a change in methods of treatment or in required physical medicine services, or (E) a need for rental or purchase of durable medical equipment or orthotic devices;

(3) The employee's condition permits return to modified or regular work;

(4) The employee's condition requires him or her to leave work, or requires changes in work restrictions or modifications;

(5) The employee is discharged;

(6) The primary treating physician concludes that the employee's permanent disability precludes, or is likely to preclude, the employee from engaging in the employee's usual occupation or the occupation in which the employee was engaged at the time of the injury, as required pursuant to Labor Code Section 4636(b);

(7) The employer reasonably requests additional appropriate information;

(8) When ongoing treatment is provided, a progress report shall be made no later than forty-five days from the last report of any type under this section even if no event described in paragraphs (1) to (7) has occurred.

Reports required under this subdivision shall be submitted on the form entitled "Primary Treating Physician's Progress Report," Form PR-2, or in the form of a narrative report. If a narrative report is used, it must be entitled "Primary Treating Physician's Progress Report" in bold-faced type, must indicate clearly the reason the report is being submitted, and must contain the same information using the same subject headings in the same order as Form PR-2.

By mutual agreement between the physician and the claims administrator, the physician may make reports in any manner and form.

(g) When the primary treating 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 or future medical care resulting from the injury. The information may be submitted on the form entitled "Treating Physician's Permanent and Stationary Report," Form PR-3, or using the instructions on the form entitled "Treating Physician's Determination of Medical Issues Form," Form IMC 81556, or in such other manner as provides all the information required by Title 8, California Code of Regulations, Section 10606. Qualified Medical Evaluators and Agreed Medical Evaluators may not use Form PR-3 to report medical-legal evaluations.

(h) Any controversies concerning this section shall be resolved pursuant to Labor Code Section 4603 or 4604, whichever is appropriate.

(i) Claims administrators shall reimburse primary treating physicians for their reports submitted pursuant to this section as required by the Official Medical Fee Schedule.

§9786. Employer's Petition for Order Requiring Employee to Select Employer-Designated Physician.

(a) An employer desiring a change of employee-selected physician pursuant to Labor Code Section 4603 shall file with the Administrative Director a Petition for Order Requiring Employee to Select Employer-Designated Physician. Said petition shall be filed and verified under penalty of perjury on a form and in a manner prescribed by the Administrative Director.

Said petition shall be accompanied by any supportive documentary evidence filed therewith and proof of service on the employee or, if represented, the employee's authorized attorney or representative, and upon the employee-selected and currently treating physician or chiropractor.

(b) Good cause to grant the petition shall be clearly shown by verified statement of facts, and, where appropriate, supportive documentary evidence. Good cause includes, but is not limited to any of the following:

(1) The treating physician has failed to comply with subdivision (b) or (d) of Section 9785 by not timely submitting a required report or submitting a report which is inadequate due to material omissions or deficiencies;

(2) The treating physician has failed to comply with subdivision (c) of Section 9785 by failing to submit timely and complete reports on two or more occasions;

(3) A clear showing evidenced by medical reports that current treatment is inappropriate and that the employer is prepared to offer more effective treatment to cure or relieve from the effects of the injury or illness. If the current treatment is consistent with the treatment plan submitted pursuant to Section 9785, however, good cause shall not be deemed to exist unless, within 15 calendar days of receipt of (A) the treatment plan submitted pursuant to subdivision (b) of Section 9785 or (B) the report of any significant change to the treatment plan submitted pursuant to subdivision (d)(5) of Section 9785, the employer notified the physician:

(i) of any objections to the treatment plan, or to a change to the treatment plan, including the medical basis for the objections, or

(ii) that the employer is scheduling a consultation with another physician to assist in assessing the treatment plan and the employer notified the physician of any objections to the treatment plan, or change to the treatment plan, including the medical basis for the objections, within 15 days of receipt of the consultation report;

(4) A clear showing that the current treatment is not consistent with the treatment plan submitted pursuant to Section 9785;

(5) A clear showing that the employee-selected physician or facility is not within a reasonable geographic area.

Where good cause is based on inadequate reporting under paragraphs (1), (2) or (3), the petition must show, by documentation and verified statement, that the employer notified the treating physician or facility of the requirements of Section 9785 prior to the physician's failure to properly report.

Good cause shall not include a showing that there is no present need for medical treatment to cure or relieve from the effects of the injury. The employer's contention that the employee is no longer in need of medical treatment to cure or relieve from the effects of the injury or illness should be directed to the Workers' Compensation Appeals Board, not the Administrative Director, in support of a Petition for Order Requiring Employee to Select Employer-Designated Physician.

(c) The employee, his or her representative, or the treating physician may file with the Administrative Director a response to said petition, provided the response is filed and served on the employer and all other parties no later than 20 days after service of the petition. If the responding party wishes the contents of said response, and any supportive evidentiary documents to be considered by the Administrative Director as evidence relating to the issue of good cause, said response shall be verified under penalty of perjury in the same manner as is the Petition for Change of Physicians form provided for in this Section.

(d) The Administrative Director shall, within 45 days of the receipt of the petition, either:

(1) Dismiss said petition, without prejudice, for failure to show good cause or to meet the requirements of this Section;

(2) Deny said petition pursuant to a finding that there is no good cause to require the employee to select an employer-designated physician;

(3) Grant said petition and issue an order requiring employee to select employer-designated physician pursuant to a finding that good cause exists therefor; or

(4) Set the matter for hearing before the Administrative Director or a member of the Administrative Director's staff for hearing and determination or refer the matter to the Workers' Compensation Appeals Board for hearing and determination by a Workers' Compensation Judge of such factual determinations as may be requested by the Administrative Director.

(e) The employer's liability to pay for medical treatment by the employee-selected physician shall continue until an order of the Administrative Director issues granting the petition.

(f) The foregoing provisions of this Section notwithstanding the Administrative Director may elect to attempt informal adjustment of the employer-employee dispute as to treating physician.

(g) The Administrative Director may extend the time specified in Subsection (d) within which to act upon the employer's petition for a period of 30 days.

3209.3. (a) "Physician" includes physicians and surgeons holding an M.D. or D.O. degree, psychologists, acupuncturists, optometrists, dentists, podiatrists, and chiropractic practitioners licensed by California state law and within the scope of their practice as defined by California state law. (b) "Psychologist" means a licensed psychologist with a doctoral degree in psychology, or a doctoral degree deemed equivalent for licensure by the Board of Psychology pursuant to Section 2914 of the Business and Professions Code, and who either has at least two years of clinical experience in a recognized health setting or has met the standards of the National Register of the Health Service Providers in Psychology. (c) When treatment or evaluation for an injury is provided by a psychologist, provision shall be made for appropriate medical collaboration when requested by the employer or the insurer. (d) "Acupuncturist" means a person who holds an acupuncturist's certificate issued pursuant to Chapter 12 (commencing with Section 4925) of Division 2 of the Business and Professions Code. (e) Nothing in this section shall be construed to authorize acupuncturists to determine disability for the purposes of Article 3 (commencing with Section 4650) of Chapter 2 of Part 2, or under Section 2708 of the Unemployment Insurance Code.

4600. Medical, surgical, chiropractic, acupuncture, and hospital treatment, including nursing, medicines, medical and surgical supplies, crutches, and apparatus, including orthotic and prosthetic devices and services, that is reasonably required to cure or relieve from the effects of the injury shall be provided by the employer. In the case of his or her neglect or refusal seasonably to do so, the employer is liable for the reasonable expense incurred by or on behalf of the employee in providing treatment. After 30 days from the date the injury is reported, the employee may be treated by a physician of his or her own choice or at a facility of his or her own choice within a reasonable geographic area. However, if an employee has notified his or her employer in writing prior to the date of injury that he or she has a personal physician, the employee shall have the right to be treated by that physician from the date of injury. If an employee requests a change of physician pursuant to Section 4601, the request may be made at any time after the injury, and the alternative physician, chiropractor, or acupuncturist shall be provided within five days of the request as required by Section 4601. (Labor Code §4600, emphasis added)