WHAT IS ZERO PERCENT WHOLE PERSON IMPAIRMENT?: INJURED WORKERS WITH MEDICAL REPORTING INDICATING ZERO PERCENT WHOLE PERSON IMPAIRMENT: WHAT YOU NEED TO KNOW

In California Workers’ Compensation Law, Medical Evaluators are asked to report and determine an Injured Workers’ Permanent Disability.   In California, Permanent Disability is generated by the Medical Evaluator’s reporting.   The Evaluator’s reporting assesses the Injured Worker’s Permanent Disability in the form of a Whole Person Impairment (WPI.)  Whole Person Impairment is generated by using the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th Edition (AMA Guides.)

 

Sometimes, Injured Workers are assigned a zero percent whole person impairment by an Evaluator for their permanent disability. A zero percent whole person impairment has significant implications for an Injured Worker.  This article will discuss (a) the meaning of “whole person impairment,” (b) what a “zero” whole person impairment means? and (c) what “zero” percent whole person impairment impacts other benefits?

What Is Whole Person Impairment (WPI)?

American Medical Association Guides to the Evaluation of Permanent Impairment, 5th Edition, on Page 603, defines “Whole Person Impairment” as the “percentages that estimate the impact of the impairment on the individual’s overall ability to perform activities of daily living, excluding work.”

How Does the AMA Guides Defines Zero Percent Disability?

In the AMA Guides, “[a] 0% whole person (WP) impairment rating is assigned to an individual with an impairment if the impairment has no significant organ or body system functional consequences and does not limit the performance of the common activities of daily living indicated in Table 1-2.” [emphasis added.]

What Are The Activities of Daily Living( ADLs) that are to be addressed?

Table 1-2 of the AMA Guides provides a list of Activities of Daily Living.

Table 1-2, defines “Activities of Daily Living Commonly Measured in Activities of Daily Living (ADL) and Instrumental Activities of Daily Living (IADL) Scales”  These ADLs include:

Self-care Urinating, defecating, brushing teeth,

personal hygiene combing hair, bathing, dressing, oneself, eating.” [emphasis added.]

Communication Writing, typing, seeing, hearing, speaking” [emphasis added.]

Physical activity Standing, sitting, reclining, walking, climbing stairs” [emphasis added.]

Sensory function Hearing, seeing, tactile feeling, tasting, smelling” [emphasis added.]

Nonspecialized Grasping, lifting, tactile hand activities discrimination” [emphasis added.]

Travel Riding, driving, flying” [emphasis added.]

Sexual function Orgasm, ejaculation, lubrication, erection”  [emphasis added.]

Sleep Restful, nocturnal sleep pattern” [emphasis added.]

What Should Happen in Your Evaluation to Address ADLs?

To properly assess the Industrial Injury’s impact on ADLs, the Evaluator should interview the Injured Worker about their ADLs, they should have the Injured Worker address them via filling out an inventory of their ADLs and their difficulties concerning them.   Also, the Evaluator should look to their examination, any testing done, and their review of records to further give them insight as to the injury’s impact on ADLs.

How Can a Zero WPI Be Wrong?

It is this author’s contention that if the Evaluation Reporting shows that there is “limited performance of the common activities of daily living” then, per the AMA Guides, by their definition, it cannot be a Zero Impairment.   Therefore, the report should be questioned.  This can be done by deposition of the Evaluator, interrogatory of the Evaluator, or the offering of another Evaluator with differing opinion.

How Does a Zero Percent WPI Impact the Eligibility to Obtain a Job Displacement Voucher?

Labor Code Section 4658.7, provides that for injuries on or after 1/1/13, a requirement for obtain a job displacement voucher is that the injury caused a permanent partial disability. A “zero” percent whole person impairment assessment will, in most circumstances, will yield a zero percent permanent disability.  A zero percent disability will bar the Injured Worker from obtaining a voucher.

As an Injured Worker With a Zero WPI Report, What Should I Do?

You need to reach out a Practitioner within Workers’ Compensation to evaluate the report to see what can be done.  Don’t be discouraged by the Medical Evaluators report.  Seek advice to see if there are problems with the report and if there is a strategy to correct the problem so that you can obtain a “fair and accurate” assessment of your impairment.   There is caselaw to support this. See Almaraz Guzman vs. Environmental Recovery Service (2009) 74 C.C.C. 1084.

What If I Need Advice?

If you would like a free consultation regarding workers’ compensation, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. We have been helping people in Central and Southern California deal with their workers’ compensation cases for 27 years. Contact us today for more information.

 

     

 

 

CBD (Cannabinol) AND WORKERS’ COMPENSATION: PUBLISHED IMR DECISIONS CONCERNING CBD AND WORKERS’ COMPENSATION: WHAT YOU NEED TO KNOW

Many Injured Workers who are seeking treatment as a result of their industrial injury often seek to treat with alternative medicine. Rather than taking prescription pills or medications, they seek treatment via other means such as natural forms of treatment. There are many herbs and supplements that have been used within medicine to treat various conditions. One form of natural treatments which has been touted, is CBD or Cannabinol. CBD has been recommended for treatment for a variety of medical conditions.

In California Workers’ Compensation, medical treatment is subject to insurance company approval via a Utilization Review(UR) Program. Further, a UR denial of treatment is subject to an appeal via an Independent Medical Review(IMR) program. The IMR Program issues determinations on the appeals. Some of these IMR determinations have been published by LexisNexis. LexisNexis is a service which provides legal resources and research to the legal community. Frequently, reporting from LexisNexis is used as authority to support legal positions.

This article will discuss these recently published IMR decisions in which CBD was at issue. These published decisions provide some insight as to whether future requests for CBD will be authorized for industrial medical treatment. These published decisions provide us the current problems with the requests being made. The IMR decisions also provide some insight as to what medical providers need to put into their “requests for authorization” that should assist in getting CBD approved.

What is CBD?

Cannabidiol (CBD) oils are low tetrahydrocannabinol products derived from Cannabis sativa that have become very popular over the past few years. Patients report relief for a variety of conditions, particularly pain, without the intoxicating adverse effects of medical marijuana.” Clinicians’ Guide to Cannabidiol and Hemp Oils https://doi.org/10.1016/j.mayocp.2019.01.003 “One promising area has been use of the plant Cannabis sativa, both in medical marijuana as well as hemp and cannabidiol (CBD) oils, with some evidence that access to medical marijuana is correlated with a decrease in opioid use, although there has been controversy about the risks and benefits of encouraging poorly regulated medical use of a known substance of abuse.5, 6 Cannabidiol and hemp oils have become especially popular because of their low tetrahydrocannabinol (THC) levels, resulting in attributed medical benefits without the “high” of marijuana.7 However, clinicians have concerns about whether these treatment options are legal, safe, and effective and are largely unfamiliar with these products.8, 9 Supra.

There are a variety of uses for CBD, “[a]ccording to a recent systematic review on the medical uses of cannabinoids, there was moderate-quality evidence to support the use of cannabinoids for chronic pain and spasticity, and low-quality evidence to support use for nausea and vomiting due to chemotherapy, weight gain in HIV infection, sleep disorders, and Tourette syndrome.30 However, it is important to realize that most of the randomized controlled trials xamined in this systematic review for each condition were of the 3 prescriptible THC drugs dronabinol, nabilone, and nabiximols; only 4 trials were found for CBD, and none for any of the other phytocannabinoids or terpenoids present in C sativa oils,30 again demonstrating the lack of solid scientific research conducted on them.”

It is noted that “[a]lthough the use of CBD has been theorized for a variety of other conditions from migraines and inflammatory conditions to depression and anxiety, only preclinical and pilot studies have been performed for any of these uses, and therefore there is little guidance for physicians if their patient is interested in trying CBD or hemp oils for these conditions.” Supra.

As for CBD and hemp oils’ potential for use in the treatment of chronic pain, in the most recent review on the topic in 2018, Donvito et al42 wrote that “an overwhelming body of convincing preclinical evidence indicates that cannabinoids produce antinociceptive effects in inflammatory and neuropathic rodent pain models.” Additionally, it has been reported that CBD may be able to treat addiction through reduced activation of the amygdala during negative emotional processing and has been found to reduce heroin-seeking behavior, likely through its modulation of dopamine and serotonin.43, 44, 85, 86 Cannabidiol therefore represents an attractive option in chronic pain treatment, particularly in the context of opioid abuse, not only because of its potential efficacy but also because of its limited misuse and diversion potential as well as safety profile.86 More research will be needed because these were pilot human studies with small sample sizes, but they represent potential future areas of cannabinoid use in the clinical treatment of pain relief and opioid abuse. Additionally, more reflection on the right political and industrial means to go about expanding access to CBD is needed in the context of controversial evidence supporting expanding access to medical marijuana as a pain control option.”

This Clinician’s Guide article clearly shows that there is currently a lack of significant positive research supporting CBD use. As research continues, we will begin to know more about CBD. It is important to note that medical treatment review looks toward “Evidence Based Studies.” Therefore, it is important that these be cited in requests. Also, functional improvement is also an important concept. This means that someone is actually getting better by the provision of the treatment.

What Is the Utilization Review Process?

Per the California Department of Industrial Relatinos, “[u]tilization review [UR] is the process used by employers or claims administrators to review treatment to determine if it is medically necessary. all employers or their workers’ compensation claims administrators are required by law to have a[n] UR program. This program is used to decide whether or not to approve medical treatment recommended by a physician which must be based on the medical treatment guidelines.”

What is the Independent Medical Review Process?

Per the California Department of Industrial Relations, “California’s workers’ compensation system uses a process called independent medical review (IMR) to resolve disputes about the medical treatment of injured employees. As of July 1, 2013, medical treatment disputes for all dates of injury will be resolved by physicians through an efficient process known as IMR, rather than through the often cumbersome and costly court system.

A request for medical treatment in the workers’ compensations system must go through a “utilization review” process to confirm that it is medically necessary before it is approved. If utilization review denies, delays or modifies a treating physician’s request for medical treatment because the treatment is not medically necessary, the injured employee can ask for a review of that decision through IMR.”

What Are Published IMR Decisions?

Since 2017, select IMR decisions have been published by LexisNexis. The “criteria for selection include discussion of relevant medical topics, including but not limited to prescription medicine, home health care, orthopedic issues, physical therapy, opioid prescriptions, etc.” These published decisions, however, are “not meant to be reflective of the proportion of all IMR decisions that overturn utilization review (UR) denials.”

In sum, these reported decisions are merely some select decisions and may not be representative of the totality of decisions. There may be some other CBD decisions of interest. These decisions discussed, however, will provide some insight as to how IMR views “requests for authorization” for CBD are addressed.

IMR Denial of a Prescription of Marinol

In IMR 83 Cal. Comp. Cases 1151, IMR Decision CM17-0187381, a request for authorization for the provision of Marinol was denied. It was noted that “ 2. Marinol 2.5mg #60 is not medically necessary and appropriate.” The UR Evidence cited was “Non-MTUS Official Disability Guidelines (ODG)” The IMR Evidence cited: was the ”MTUS Chronic Pain Medical Treatment 2016 Guidelines, Section(s): Cannabinoids.” The IMR Rationale was that “[t]he Chronic pain section of the MTUS states that cannabinoids are not recommended for pain. Cannabis use is associated with modest declines in cognitive performance, especially learning and recall, particularly when higher doses are used. Their use as analgesics can have undesirable CNS impact, and often dose optimization may not be achieved before the onset of excessive side effects. Nabilone, a synthetic cannabinoid, has been approved to treat severe nausea and emesis secondary to cancer chemotherapy, and may be useful for pain management and further trials for evaluation should be done. A preliminary study suggests that dronabinol, a synthetic THC, resulted in additional analgesia in patients taking opioids for chronic non cancer pain. Recent research shows that adolescents who use cannabis show an irreparable decline in their IQ. The American Society of Addiction Medicine has taken a position against medical marijuana because it is a dangerous and addictive drug. Also, cannabis is unstable and the drug should be subject to the same standards applying to other medications. The Chronic pain review states that for every disease and disorder for which it is recommended, there is a better FDA approved medication. The 2 main chemical ingredients of marijuana, delta9-tetrrahydrocannabinol [THC] and cannabidiol [CBD], appear to have different effects on behavior and the brain. Even a modest dose of THC, the ingredient responsible for the high of marijuana can cause psychotic symptoms, whereas CBD can be useful to treat psychosis. Regular use of marijuana in vulnerable persons is associated with increased risk of psychotic disorders such as schizophrenia. However, CBD had the opposite effect.

The provider desires to utilize Marinol, a cannabinoid medication, to treat anorexia. The MTUS states that cannabinoid medication are associated with decrease in cognnition. It is noted to be both dangerous and addictive. The MTUS states that for every disease and disorder in which these drugs are recommended, there is a better FDA approved medication. It is felt that the request for Marinol 2.5 mg #60 is not medically necessary and appropriate.” Emphasis added.

IMR Denial of a Prescription for CBD

In IMR 83 Cal. Comp. Cases 1769, IMR Decision CM18-0062882, it was noted that “2. Cannabidol (CBD) 5mg BID for 30 days (in the form of tablet / TSF in case of oil) is not medically necessary and appropriate.” The UR Evidence that was cited was “The guidelines used by the Claims Administrator are not clearly stated in the UR determination.” The IMR Evidence cited was “Non-MTUS Official Disability Guidelines, Pain Section/Cannabidol Topic.” The IMR Rationale was “[t]he MTUS Guidelines do not address the use of Cannabidol. Per the ODG, Cannabidol is not recommended for pain. As of August 2014, 23 states and DC have enacted laws to legalize medical marijuana, but there are no quality studies supporting cannabinoid use, and there are serious risks. Restricted legal access to Schedule I drugs, such as marijuana, tends to hamper research in this area. It is also very hard to do controlled studies with a drug that is psychoactive because it is hard to blind these effects. At this time, it is difficult to justify advising patients to smoke street-grade marijuana, presuming that they will experience benefit, when they may also be harmed. One of the first dose-response studies of cannabis in humans has found that mid-range doses provided some pain relief, but high doses appeared to exacerbate pain. As Cannabidol is not recommended by the guidelines, medical necessity has not been established. The request for Cannabidol (CBD) 5mg BID for 30 days (in the form of tablet / TSF in case of oil) is not medically necessary.”[emphasis added]

Interesting Note: There is a Guideline for treating chronic pain with cannabinoids. A vague request of “street-grade marijuana” is not to be considered as sufficient.

IMR Denying Marijuana With CBD

In IMR Decision 83 Cal. Comp. Cases 1161, IMR Decision CM17-0220138, it was found that “1.  Marijuana with cannabidlol (CBD) dosage/quantity/frequency not specified is not medically necessary and appropriate.” The UR Evidence cited was “MTUS Chronic Pain Medical Treatment 2016 Guidelines, Section(s): Cannabinoids.” The IMR Evidence cited was “MTUS Chronic Pain Medical Treatment 2016 Guidelines, Section(s): Cannabinoids.” The IMR Rationale was “The claimant is a 32 year old female who sustained an industrial injury on September 29, 2012. She has a diagnosis of Lyme Disease. She is also noted to have chronic back pain and headaches and memory difficulty. This request is for “Marijuana with cannabidlol (CBD) dosage/quantity/frequency not specified.” MTUS guidelines state, “Not recommended for pain. A growing number of states (23 at the time of publication of this guideline) (NCSL, 2013) have approved the use of medical marijuana for the treatment of chronic pain, but there are no quality studies supporting cannabinoid use, and there are serious risks. Restricted legal access to Schedule I drugs, such as marijuana, tends to hamper research in this area. It is also very hard to do controlled studies with a drug that is psychoactive because it is hard to blind these effects. At this time it is difficult to justify advising patients to smoke street-grade marijuana, presuming that they will experience benefit, when they may also be harmed.” Regarding this claimant’s case, this claimant is well documented to have chronic pain. Cannabinoids are not currently recommended for the treatment of chronic pain due to a lack of supporting evidence based studies. Additionally, this request was submitted without specification of dosage/quantity/frequency. Likewise, the medical necessity of this request is not established.” [emphasis added]

Interesting Note: when this decision was made, there was a lack of quality studies concerning the employing Marijuana with CBD. This may change if there is further studies to support such a claim. These studies would have to be “evidence-based studies.”

IMR Decision Denying Request for CBD

In IMR Decision 83 Cal. Comp. Cases 1145, IMR Decision CM17-0187339, the IMR DECISION found “CBD 25mg #90 is not medically necessary and appropriate.” The UR Evidence cited was “MTUS Chronic Pain Medical Treatment 2016 Guidelines, Section(s): Cannabinoids, Medical foods.” The IMR Evidence cited was “MTUS Chronic Pain Medical Treatment 2016 Guidelines, Section(s): Cannabinoids. Non-MTUS Official Disability Guidelines, Pain, Cannabinoids.” The IMR Rationale was that “[t]his is a request for CBD [A cannabinoid] 25 mg #90.

This claimant was injured in November 2003. There was a complex regional pain syndrome, dysthymic disorder and lumbar radiculopathy status post fusion. As of July, there was an urgent visit due to severe pain. There was right knee and low back pain with radiation down the left leg. In August of this year the patient underwent a right total knee arthroplasty. The patient was doing well postoperatively. The patient stopped using a continuous passive motion machine because it caused his knee to swell. The patient had been on CBD since at least April of this year. Objective, functional improvement out of the cannabinoid use is not noted.

The MTUS Chronic Pain guidelines notes:

Not recommended for pain.

As of August 2014, 23 states and DC have enacted laws to legalize medical marijuana (Markoff, 2014), but there are no quality studies supporting cannabinoid use, and there are serious risks. Restricted legal access to Schedule I drugs, such as marijuana, tends to hamper research in this area. It is also very hard to do controlled studies with a drug that is psychoactive because it is hard to blind these effects. At this time, it is difficult to justify advising patients to smoke street-grade marijuana, presuming that they will experience benefit, when they may also be harmed. (Mackie, 2007) (Moskowitz, 2007) One of the first dose-response studies of cannabis in humans has found that mid-range doses provided some pain relief, but high doses appeared to exacerbate pain. (Wallace, 2007)

Cannabis use is associated with modest declines in cognitive performance, particularly learning and recall, especially at higher doses. The finding necessitates caution in the prescribing of medical marijuana for pain, especially in instances in which learning and memory are integral to a patient’s work and lifestyle. (Wilsey, 2008) Cannabinoids as analgesic agents can have an undesirable CNS impact, and, in many cases, dose optimization may not be realizable before onset of excessive side effects. (McCarberg, 2007) This study concluded that nabilone,  [**6] a synthetic cannabinoid approved for treatment of severe nausea and vomiting associated with cancer chemotherapy, may be a useful addition to pain management and should be further evaluated in randomized controlled trials. (Berlach, 2006) See also Nabilone (Cesamet®). The results of this preliminary study suggest that dronabinol, a synthetic THC, resulted in additional analgesia among patients taking opioids for chronic noncancer pain. (Narang, 2008) Adding a cannabinoid to opioid therapy may lead to greater pain relief at lower opioid doses, according to a new study, but more study is needed. (Abrams, 2011)

Given the incomplete verification of the effectiveness of CBD for pain management, the request is not medically necessary.” [emphasis added]

Interesting Note: In this matter, there was no evidence that the CBD was working. The Injured Worker had in fact been taking it and did not report any functional improvement. Functional Improvement is an important factor to justify continued use.

What are the Medical Treatment Utilization Schedule(MTUS) Chronic Pain Medical Treatment Guidelines for Cannabinoids?

As of 2016, the Guides provide that cannabinoids are “[n]ot recommended for pain. A growing number of states (23 at the time of publication of this guideline) (NCSL, 2013) have approved the use of medical marijuana for the treatment of chronic pain, but there are no quality studies supporting cannabinoid use, and there are serious risks. Restricted legal access to Schedule I drugs, such as marijuana, tends to hamper research in this area. It is also very hard to do controlled studies with a drug that is psychoactive because it is hard to blind these effects. At this time it is difficult to justify advising patients to smoke street-grade marijuana, presuming that they will experience benefit, when they may also be harmed. (Mackie, 2007) (Moskowitz, 2007) One of the first dose response studies of cannabis in humans has found that mid-range doses provided some pain relief, but high doses appeared to exacerbate pain. (Wallace, 2007) Cannabis use is associated with modest declines in cognitive performance, particularly learning and recall, especially at higher doses. The finding necessitates caution in the prescribing of medical marijuana for pain, especially in instances in which learning and memory are integral to a patient’s work and lifestyle. (Wilsey, 2008) Cannabinoids Chronic Pain Medical Treatment Guidelines MTUS – 8 C.C.R. § 9792.24.2 (July 28, 2016) 42 as analgesic agents can have an undesirable CNS impact, and, in many cases, dose optimization may not be realizable before onset of excessive side effects. (McCarberg, 2007) This study concluded that nabilone, a synthetic cannabinoid approved for treatment of severe nausea and vomiting associated with cancer chemotherapy, may be a useful addition to pain management and should be further evaluated in randomized controlled trials. (Berlach, 2006) See also Nabilone (Cesamet®). The results of this preliminary study suggest that dronabinol, a synthetic THC, resulted in additional analgesia among patients taking opioids for chronic noncancer pain. (Narang, 2008) Adding a cannabinoid to opioid therapy may lead to greater pain relief at lower opioid doses, according to a new study, but more study is needed. (Abrams, 2011) Recent research: Cannabis users who start using the drug as adolescents show an irreparable decline in IQ, with more persistent use linked to a greater decline, according to a New Zealand prospective study with over 1,000 patients. Adolescents are particularly vulnerable to developing cognitive impairment from cannabis and the drug, far from being harmless, as many teens and even adults believe, can have severe neurotoxic effects on the brain. Between the ages of 8 and 38 years, individuals who began using cannabis in adolescence and continued to use it for years thereafter lost an average of 8 IQ points, versus rising slightly in nonusers. Cessation of cannabis did not restore IQ among teen-onset cannabis users. Cannabis in New Zealand has a THC content of approximately 9%. (Meier, 2013) The American Society of Addiction Medicine (ASAM) has taken a position against medical marijuana, saying physicians should not recommend that patients use marijuana for medical purposes, because it is a dangerous, addictive drug and is not approved by the FDA. Cannabis is unstable and unpredictable and the drug should be subject to the same standards that apply to other medications. For every disease and disorder for which marijuana has been recommended, there is a better, FDA approved medication. (Gitlow, 2013) An RCT of smoked marijuana and oral dronabinol (tetrahydrocannabinol; THC) showed that both produce an analgesic effect, but this effect lasts longer with dronabinol, and it is less subject to abuse. Reported advantages to smoked marijuana are its faster onset and the relative ease with which doses can be managed, but it is not always safe or feasible to smoke marijuana. In addition to the cardiopulmonary risks this carries, smoking anything is not acceptable, such as on an airplane or at work. On the other hand, dronabinol is not approved for pain, only for chemotherapy-induced nausea and AIDS related weight loss. And, the recommended doses (2.5 mg to 5 mg) are much lower than those used in this study (10 mg to 20 mg) that seemed to have an effect on pain. (Cooper, 2013) The 2 main chemical ingredients in marijuana, Δ9-tetrahydrocannabinol (THC) and cannabidiol (CBD), can have very different effects on behavior and in the brain, this research shows. Even a single modest dose of THC, the main ingredient in marijuana that is responsible for the high, can induce psychotic symptoms, whereas CBD can be useful as a treatment for psychosis. Regular marijuana use in vulnerable individuals is associated with increased risk of developing psychotic disorders such as schizophrenia, in which patients lose contact with reality. CBD, on the other hand, had the opposite effect, increasing the response of the left caudate, an area of the brain weakened by THC. (Bhattacharyya, 2012) Long-term marijuana use has been linked to structural brain changes similar to those observed in schizophrenia patients, and they correlate with poorer working memory. Teens who smoked marijuana daily for about 3 years performed poorly on tests of working memory and had abnormal changes in brain structures akin to those seen in patients with schizophrenia, linking long-term use of marijuana to brain abnormalities that appear to last for at least a few years after people stop using it. (Smith, 2013) Epilepsy: Cannabinoids have therapeutic potential in epilepsy, but their efficacy and safety remain to be proven. There are no controlled trials demonstrating that marijuana is safe or effective for the treatment of epilepsy. On the other hand, there is evidence that marijuana may be harmful, particularly in the developing brain after regular use. Synthetic cannabinoids appear even more toxic. For patients who have exhausted conventional therapies, medical marijuana, with anecdotal evidence of seizure control, could be considered as an alternative therapy. Such use should be carefully monitored by a physician. (Robson, 2014)”

Note: You can see that this Guideline is cited within the IMR denials as well as the UR denials. A doctor needs to carefully review and explain their decision to employ CBD in light of these Guidelines. Further, if there are new Evidence Based Studies Post-2016, they may assist in getting the item approved.

What If I Need Advice?

If you would like a free consultation regarding workers’ compensation, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. We have been helping people in Central and Southern California deal with their workers’ compensation cases for 27 years. Contact ustoday for more information.

WORKERS’ COMPENSATION ATTORNEYS AND TRIALS: INJURED WORKERS, DISPUTED CASES AND WORKERS’ COMPENSATION: WHAT YOU NEED TO KNOW

Workers’ Compensation Attorneys can play a vital role in Workers’ Compensation Trials. A Workers’ Compensation Attorney’s abilities can impact on an Injured Worker’s recovery of benefits.

This article will discuss the role of Workers’ Compensation Attorneys in the Trial Process and how they assist Injured Workers in proving up their right to benefits.

Who Are Workers’ Compensation Attorneys?

Technically, there are no “Workers’ Compensation Attorneys.” Attorneys who practice workers’ compensation are licensed in the State of California to practice law. This means that they are eligible to practice any area of law within the State. Workers’ Compensation Attorneys receive the label as being a “Workers’ Compensation Attorney” based upon the fact that a significant part of their practice relates to the handling of workers’ compensations cases.

Workers’ Compensation Attorneys craft their trial skills in many ways. There are various organizations that provide training and education. There is a certified specialist program from the State Bar, there is the Workers’ Compensation Section of the California Lawyers Association (CLA) which provides educational programs, and there is California Applicant Attorneys Association (CAAA) which provides educational programs. Also, the Division of Workers’ Compensation from the Department of Industrial Relations that also provides educational programming. Many attorneys participate in the many different organizations to sharpen their skills.

Finally, many Workers’ Compensations Attorneys have “decades” of experience in representing injured workers and doing workers’ compensation trials. You will find many attorneys who have participated in over 100 trials.

The “Art of the Trial”

A Workers’ Compensation Trial can be viewed as a form of “art.” A well-done Trial is a wonderful thing to observe. When every participant “has their game on,” it is sheer entertainment. It is akin to a game of chess played with law, emotions, truth, lies, cunning, and actual stakes. The chess pieces at the trial include the Judge, the Court Reporter, the Attorneys, and the Witnesses.

The Workers’ Compensation Community has quite a number of skilled and experienced attorneys who are up to the challenge. There have been many outstanding trials. There have been times that I have taken the time out of my busy schedule to sit and observe other parties trials for both educational and entertainment purposes.

In those moments of a well-tried case, you feel that justice is taking place. The parties have been given a fair opportunity to present their case. These moments occur when Judge manages the courtroom with their demeanor and actions. The Judge plays a vital role in maintaining decorum and keeping the trial progressing. At the end of a good trial, the Injured Worker should have had the ample opportunity to be heard in a respectful manner.

In sum, the Constitutional Mandate of “Substantial Justice” will have been achieved.

As Far as Trial, What Skills Does an Attorney Need?

The answer to this question must be broken up into components. Pre-Trial, Trial, and Post-Trial.

Trial: I will first approach this question with respect to the Trial date itself. When I was an Associate Attorney, at a prior law office, on a rare occasion, I assigned to try a case at the last moment. In that circumstance, it was all about Trial Skills in handling the matter. There was no opportunity for Pre-Trial preparation.

Trial Skills include:

  • Proper understanding of WCAB Policy and Procedures
  • Proper reviewing of the file
  • Proper understanding of the issues
  • Proper interaction with the Injured Worker and Witnesses to ascertain testimony
  • The ability to establish a foundation for the issues and evidence and present them so that they are reflected in the record

With all those in mind, the Workers’ Compensation Attorney should be able to present the case, establish all of the facts and get admitted into evidence all pertinent exhibits necessary to “prove up the case.” This can include placing the Injured Worker and possibly some other witnesses on the stand to testify to “prove up the issues.” Also, they must be able to effectively cross-examine any defense witnesses.

Are Workers’ Compensation Trials Different than Civil Trials? Does It Matter?

Yes. Workers’ Compensation cases are tried at the Workers’ Compensation Appeals Board before a Workers’ Compensation Judge. Unlike Civil Cases, there is no jury. The proceeding is considered as Administrative Law.

In Workers’ Compensation, the Judge is the “trier-of-fact” rather than a jury. Therefore, the Trial Lawyer dramatics that may be employed in a civil trial may be unwarranted. Sometimes, the Workers’ Compensation Judge, for any given trial, channels the famous line from the fictional character from the TV Show “Dragnet.” As Joe Friday, the Detective for the LAPD, used to saw, “just the facts, ma’am.” Many times, Judges want to avoid trial drama and simply want “the facts.”

What are Workers’ Compensation Attorney’s Pre-Trial Activities?

Pre-Trial Activities involve framing of the legal issues of import for the case and establishing the facts and expert opinion to support the various positions. In workers’ compensation, the expert opinion is generally the employment of a medical expert such as a physician. This expert opinion is presented via medical reporting and deposition. In essence, prior to Trial, the Workers’ Compensation Attorney has all already established all the facts and opinions to support a favorable award. The trial may essentially be whether “the facts” either exist or are truthful in nature. By exist, for example, it could be as simple as the Applicant establishing the fact that they fell off of a ladder. By truthful, it is a situation in which where the Judge may have to decide between the testimony of the Injured Worker versus the testimony of an Employer Witness.

What are Workers’ Compensation Attorneys’ Post-Trial Activities?

Many times, there are Post-Trial activities. There are times at which the Workers’ Compensation Judge may request briefing of the issues from the parties. Therefore, a quality Workers’ Compensation Attorney will have writing skills as well as trial skills. Writing skills involve legal knowledge combined with the ability to express arguments and contentions.

Additionally, there may be appeals relating to an underlying Trial Decision from the Workers’ Compensation Judge. Therefore, a Workers’ Compensation Attorney’s ability to prepare appeals such as Petitions for Reconsideration is also of import. Further, the ability to prepare opposition briefing to a Defendant’s Petition for Reconsideration is required as well.

What If I Need Legal Advice?

If you would like a “free” consultation concerning any workers’ compensation case, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. They have been helping people in Central and Southern California deal with their worker’s compensation cases for 28 years. for more information.

Photo by Yancy Min on Unsplash

FAVORABLE IMR DECISIONS WITH RESPECT TO CANNABINOIDS: INJURED WORKERS SEEKING CANNABINOID TREATMENT AND WORKERS’ COMPENSATION: WHAT YOU NEED TO KNOW

Many Injured Workers seek alternative medical treatments for their industrial injuries. Some of those seek the use of cannabinoids to do so. In order to obtain such treatment, these Injured Worker’s Treating Physicians must request such treatment.

Treatment Requests go through an Insurance Company’s Utilization Review (UR) to approve or deny the request. If the treatment request is denied, then it is subject to the State of California’s Independent Medical Review(IMR) process. IMR has the ability to “overturn” an UR decision. If the IMR overturns the determination, the Injured Worker can obtain the treatment.

There has been two IMR determinations which have overturned a request for the use of cannabinoids. This article will discuss these two IMR determinations which have overturned the denial of cannabinoids as form of treatment for an industrial injury.

What Are Cannabinoids?

“There are over 480 natural components found within the Cannabis sativa plant, of which 66 have been classified as “cannabinoids;” chemicals unique to the plant. The most well-known and researched of these, delta-9-tetrahydrocannabinol (Δ9-THC), is the substance primarily responsible for the psychoactive effects of cannabis. The effects of THC are believed to be moderated by the influence of the other components of the plant, most particularly the cannabinoids.

The cannabinoids are separated into subclasses. These are as follows: Cannabigerols (CBG), Cannabichromenes (CBC), Cannabidiols (CBD), Tetrahydrocannabinols (THC), Cannabinol (CBN) and Cannabinodiol (CBDL), Other cannabinoids (such as Cannabicyclol (CBL), Cannabielsoin (CBE), Cannabitriol (CBT) and other miscellaneous types).” ADAI

What Are Treatments for Which Cannabinoids Have Been Used?

Per Barth Wilsey, MD, a Pain Medicine Specialist at the University of California Davis Medical Center, pain is the main reason people ask for a prescription. The pain can be headaches, cancer, glaucoma or nerve pain. It can also be used to treat muscle spasms caused by multiple sclerosis, nausea from cancer chemotherapy, poor appetite or weight loss from chronic illness such as HIV or Nerve Pain. It can be used to treat Seizure Disorders or Crohn’s Disease. Medical Marijuana may be smoked, vaporized, eaten or taken as a liquid extract. Again, as noted above the FDA has also approved THC, a key ingredient in marijuana, to treat nausea and improve appetite. It’s available by prescription Marinol (dronabinol) and Cesamet (nabilone). See WebMd.

What Are the IMR Decisions Which Have Overturned and Approved of Cannabinoids?

Dronabinol: CM18-0064228: NAUSEA

The rationale for overturning the utilization review determination was that the medical records on the case reported nausea. The IMR determination noted that Harrison’s principles of medicine supported dronabinol for treatment of nausea. Dronabinol was found medically necessary. In the matter, the Injured Worker was post-back surgery and was taking a multitude of medications to dealing with her chronic back pain.

CBD Oil: CM18-0082382: CHRONIC PAIN ON A TRIAL BASIS

The rationale provided was that the Guidelines, at the time, did not address this specific issue. They noted that CBD oil is a legal hemp extract that has soft evidence for pain control. It noted that it is legal in California and if utilized the best recommendation is for it to be supervised by a physician who is familiar with its sources and potential problems. It was noted that it was considered very safe. Further, it noted that similar to other treatments such as TENS, ACU, and Medications, with soft evidence for use. Therefore, a limited trial would be trial would be reasonable. It stated that if the one bottle or month trial did not provide significant pain relief and functional benefits, this ongoing use would not be appropriate. Under those circumstances, the IMR found that the one bottle of CBD Oil on a trial basis was medically necessary.

In this matter, the Applicant was suffering from knee and back pain. The Injured Worker had gone through one surgery and a variety of procedures to treat their pain. The Injured Worker was viewed as one suffering from “chronic pain.”

What If I Want This Type of Treatment?

If you desire to try Cannabinoids to treat for your industrial accident, you must get your Treating Physician to make the request. Further, the request must relate to a condition for which there is a medical basis for its use. In the two IMR decision that were positive, nausea and “chronic pain” on a trial basis were found to be acceptable. It is important to note that pain itself was not a basis for the decision. It was “chronic pain” which was the basis. “Chronic Pain” mean pain lasting three or more months from the initial onset of pain.

What If I Need Legal Advice?

If you would like a “free” consultation concerning any workers’ compensation case, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. They have been helping people in Central and Southern California deal with their worker’s compensation cases for 28 years. for more information.

Photo by Michal Wozniak on Unsplash

EYE MOVEMENT DESENSITIZATION AND REPROCESSING(EMDR) AS A FORM OF MEDICAL TREATMENT FOR WORK INJURIES: EMDR AND WORKERS’ COMPENSATION: WHAT YOU NEED TO KNOW

Injured Workers are frequently prescribed treatment which is non-traditional or that is a new form of treatment. Eye Movement Desensitization and Reprocessing (EMDR) is relatively new form of psychological treatment (30 years of existence as of 2019.) This article will discuss EMDR and why it may become a popular form of treatment within workers’ compensation.

EMDR is a therapy that is used to treat Post-Traumatic Stress Disorder(PTSD.)

What is EMDR?

“Eye Movement Desensitization and Reprocessing (EMDR) is a psychotherapy treatment that was originally designed to alleviate the distress associated with traumatic memories (Shapiro, 1989a, 1989b).” EMDR Institute, Inc.

“EMDR (Eye Movement Desensitization and Reprocessing) is a psychotherapy that enables people to heal from the symptoms and emotional distress that are the result of disturbing life experiences. Repeated studies show that by using EMDR therapy people can experience the benefits of psychotherapy that once took years to make a difference. It is widely assumed that severe emotional pain requires a long time to heal. EMDR therapy shows that the mind can in fact heal from psychological trauma much as the body recovers from physical trauma. When you cut your hand, your body works to close the wound. If a foreign object or repeated injury irritates the wound, it festers and causes pain. Once the block is removed, healing resumes. EMDR therapy demonstrates that a similar sequence of events occurs with mental processes. The brain’s information processing system naturally moves toward mental health. If the system is blocked or imbalanced by the impact of a disturbing event, the emotional wound festers and can cause intense suffering. Once the block is removed, healing resumes. Using the detailed protocols and procedures learned in EMDR therapy training sessions, clinicians help clients activate their natural healing processes.” EMDR Institute, Inc.

What Is EMDR Treatment Like?

“EMDR therapy is an eight-phase treatment. Eye movements (or other bilateral stimulation) are used during one part of the session. After the clinician has determined which memory to target first, he asks the client to hold different aspects of that event or thought in mind and to use his eyes to track the therapist’s hand as it moves back and forth across the client’s field of vision. As this happens, for reasons believed by a Harvard researcher to be connected with the biological mechanisms involved in Rapid Eye Movement (REM) sleep, internal associations arise and the clients begin to process the memory and disturbing feelings. In successful EMDR therapy, the meaning of painful events is transformed on an emotional level. For instance, a rape victim shifts from feeling horror and self-disgust to holding the firm belief that, “I survived it and I am strong.” Unlike talk therapy, the insights clients gain in EMDR therapy result not so much from clinician interpretation, but from the client’s own accelerated intellectual and emotional processes. The net effect is that clients conclude EMDR therapy feeling empowered by the very experiences that once debased them. Their wounds have not just closed, they have transformed. As a natural outcome of the EMDR therapeutic process, the clients’ thoughts, feelings and behavior are all robust indicators of emotional health and resolution—all without speaking in detail or doing homework used in other therapies.” EMDR Institute, Inc.

Why would EMDR become a popular form of treatment in Workers’ ‘Compensation?

Various Labor Code Sections 4600, 5307.27, support the position that Evidence-Based Medical Treatment is an important consideration with respect to whether a form of treatment will be authorized within the workers’ compensation system. Evidence-Based Studies have shown that EMDR is effective. If this is the case, California Workers’ Compensation should accept such treatment as indicated and recommend that it be approved through Utilization Review and Independent Medical Review.

A recent study supports EMDR for treatment for Post-Traumatic Stress Disorder (PTSD.) In Mavranezouli I, Megnin-Viggars O, Grey N, Bhutani G, Leach J, Daly C, et al. (2020) Cost effectiveness of psychological treatments for posttraumatic stress disorder in adults. PLoS ONE 15 (4): e0232245. https://doi.org/10.1371/journal. pone.0232245, the study concludes that “[a] number of interventions appear to be cost-effective for the management of PTSD in adults. EMDR appears to be the most cost-effective amongst them. TF-CBT has the largest evidence base. There remains a need for well-conducted studies that examine the long term clinical and cost-effectiveness of a range of treatments for adults with PTSD.”

In the study, “ Eye movement desensitisation and reprocessing (EMDR) appeared to be the most costeffective intervention for adults with PTSD (with a probability of 0.34 amongst the 11 evaluated options at a cost-effectiveness threshold of £20,000/QALY), followed by combined somatic/cognitive therapies, self-help with support, psychoeducation, selective serotonin reuptake inhibitors (SSRIs), trauma-focused cognitive behavioural therapy (TF-CBT), self help without support, non-TF-CBT and combined TF-CBT/SSRIs. Counselling appeared to be less cost-effective than no treatment. TF-CBT had the largest evidence base.”

Further, “[m]ore than 30 positive controlled outcome studies have been done on EMDR therapy. Some of the studies show that 84%-90% of single-trauma victims no longer have post-traumatic stress disorder after only three 90-minute sessions. Another study, funded by the HMO Kaiser Permanente, found that 100% of the single-trauma victims and 77% of multiple trauma victims no longer were diagnosed with PTSD after only six 50-minute sessions. In another study, 77% of combat veterans were free of PTSD in 12 sessions. There has been so much research on EMDR therapy that it is now recognized as an effective form of treatment for trauma and other disturbing experiences by organizations such as the American Psychiatric Association, the World Health Organization and the Department of Defense. Given the worldwide recognition as an effective treatment of trauma, you can easily see how EMDR therapy would be effective in treating the “everyday” memories that are the reason people have low self-esteem, feelings of powerlessness, and all the myriad problems that bring them in for therapy. Over 100,000 clinicians throughout the world use the therapy. Millions of people have been treated successfully over the past 25 years.” EMDR Institute, Inc.

Is There Any Case Law Concerning EMDR?

Yes. There have been some reported cases that discussed EMDR. In Bresler vs. WCAB, 2017 Cal. Wrk. Comp. P.D. LEXIS 95 (writ denied,) it was reported that the Injured Worker testified that they benefited from the treatment services which included EMDR. In Madson vs. Cavaletto 2017 Cal. Wrk. Comp. P.D. Lexis 95(Board Panel Decision, ) the Injured Worker testified that he felt better after EMDR treatment.

What If I Need Legal Advice?

If you would like a “free” consultation concerning any workers’ compensation case, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. They have been helping people in Central and Southern California deal with their worker’s compensation cases for 28 years. for more information.

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