Using AD Rule 9785 Regain Medical Control in California


California's Workers' Compensation 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.

Enforcement

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.

Notice

Written Notice to the Physician Regarding the §9785 Reporting Requirements Requirements is a Prerequisite to Enforcement Action

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. California's 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.

The timely reporting by "the usual suspects" statistically fails, therefore, it is advised to 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 the interpretation of the terms. By experience, they never read the statute, and they are now charged with legal notice. This letter is often found in SDT (subpoenaed) records from the doctors, which usually cements the issue on petition.

Who May Report?

The reporting signatory must meet the definition of Physician under Labor Code §3209.3. A Physician Assistant (P.A.C.) does not meet this definition.

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. Different 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. You can remove care from physicians that use PA employees to issue periodic reports. One physician 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.

What Consitutes a Valid Report

A Doctor's First Report of Occupational Injury or Illness form 5021 with a treatment plan must be issued within 5 days of the initial visit. Status reports must be on the Primary Treating Physician's Progress Report Form PR-2, or be narrative with the same information and headings.

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.

How Often Must the Physicain Report?

The primary Treater Must Report a Minimum of Every 45 Days

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. The dates of the reports and the dates of service can vary by up to 90 days. This is problematic for enforcement purposes, so track both of the dates. The AD will require 2 separate violations of the 45 day interval requirement, so 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. This is 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 is looking at a short-term relationship with the Applicant.

How Do I Remove the Primary Treater?

DWC FORM 280 is filed with proof of service on the primary treater, administrative director and applicant/counsel.

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. 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.

Example

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.

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.

Here are the common mistakes in the preparation of the Petition that will get them denied.

  • The PTP must previously be advised of his §9785 obligations in writing. This results in approximately 75% of the current AD Denials.
  • The 1/1/99 text of §9785 should now be included with your letter recognizing his PTP status.
  • The specialties of the PTP and all offered physicians must be listed.
  • One Chiropractor must be listed if the Applicant currently treats with a Chiropractor.
  • The Petition must be forwarded to the Administrative Director (not the local WCAB).
  • All medical reports of the PTP must be attached so that the Administrative Director may evaluate the reporting intervals.
  • 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.
  • 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.
  • 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.
  • 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, buy you have not seen.
  • 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.

Response by Applicant

The applicant or physician may submit a verfied answer or additional evidence within 20 days of petition receipt.

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). Most major Applicant firms don't train their paralegals to correctly respond, and the minor players don't verify their attempts themselves.

The §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. The allegations of inadequate reporting are correct in the majority of cases, and the attorneys decide to wait for the result. Most Applicants will not 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.

How Long Does in Take?

The AD will general make a decision in 45 days, but may extend this period by an additional 30 days.

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. Call 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.

Appeals

Any party may appeal to the WCAB branch within 30 days of the determination from the administrative director.

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, file the DOR for them if an Appeal is submitted. We all win when the matter is finally resolved, and you already have the momentum. In these circumstances it is unlikely that the WCJ will 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. It is 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