The Designated Doctor Rule - CCA Journal magazine

legal updateThe Designated Doctor Rulenent or temporary disability ratingwhere necessary (7).Claims are disputed by requesting acomprehensive medical evaluationby a Qualified Medical Evaluator(QME) (8). When a dispute arises, athree-member QME panel is assembled,and the parties have 10 daysto agree on a QME from the panel.If the parties are unable to reachan agreement, both sides strike oneQME, and the remaining QME performsthe evaluation and authors thereport (8). The resultant QME reportis weighted equally to the Physician’sreport (9). This final report, whetherwritten by the Physician or a QME, ultimatelyshapes an employee’s compensation.In Downey Regional Medical v.W.C.A.B, the defendant contendedthat the workers’ compensationjudge (WCJ) was required to considerthe QME’s opinion as more persuasivethan the Physician’s opinion becausethe “random selection processof the QME promoted neutrality andfairness.” Defendant thus argued thatthe WCJ was obligated to adopt theQME’s conclusion that applicant’s injurywas not work-related. The WCJ,however, held that the Labor Codedoes not require that QME reportsare “presumed to be correct,” insistingthat medical reports shouldbe weighed with “respect to theirpower of persuasion.” (10) Therefore,where the Physician’s report ismore persuasive than the QME report,it shall be the basis for what anemployee is compensated. Thus, it iscritically important that my clients’physicians draft high-quality, persuasivereports; unfortunately, this is notalways the case.Many doctors should not write thefinal “permanent and stationary” reportcalled for by the Labor Code (7).In some cases the doctor may nothave the time to write the report.In other cases they have made thechoice to focus on treatment ratherthan report writing – nothing wrongwith that. However, there is plentywrong with either failing to the writethe report or writing it badly. The finalreport will have a significant impacton the injured workers’ case, includingimpairment and future medical.Continued on next pageCCA Journal ArchivesNovember / December 2011www.calchiro.org

legal updateThe Designated Doctor RuleContinued from previous pageFortunately, in California, Physiciansmay designate their report writingduties to other doctors (11). Thisprocess provides the treating doctorwith the opportunity to help the injuredworker without actually writingthe report themselves. It also, providesan opportunity for those chiropractorsthat want to focus on reportwriting an additional source of business.In my practice, I make a point ofcommunicating with treating doctorsabout this issue. I am happy tobring doctors together to achieve abetter result for my clients. Although,ex-parte (one-sided) communicationwith physicians on the QME panel isprohibited (12), there is no such prohibitionbetween the attorney andthe treating physician.The legislative and regulatory codesbehind the designation option havebeen extensively amended in the pastfive years (13). According to Nickelsburgv. W.C.A.B (1991) 54 Cal.3d288, “It is presumed the legislature isaware of the existence of all relevantstatutes when it considers a changeor amends others.” Therefore, thelegislature leaving undisturbed thedesignation option in the Labor Code(7) and the California Code of Regulations(2), affirms this tool is a viableoption.Current legislation provides doctorswho handle workers’ compensationclaims with a useful tool by allowingthem to designate their reportwriting duties to other doctors. Ifthis were not the legislature’s intent,the designation option would havebeen eradicated in the in the recentamendments. I would strongly suggestthat you network with otherdoctors and attorneys to help facilitatethis process. The result will bebetter reports. In the next article, Iwill explain more details on the proceduralaspects of the designateddoctor rule.Jonathan Brand graduated from JohnF. Kennedy Law School in 1986. Mr.Brand founded The Law Offices ofJonathan Brand in 1989 to pursuehis interest in personal injury cases.Shortly thereafter the firm was expandedto handle workers’ compensation.Mr. Brand is a frequentlecturer in the chiropractic communityand has been a strong advocatefor alternative medicine. He can bereached at (925) 295-1670 or (800)974-9090. His e-mail is: Mailbox9@jb-law.com1) Labor Code § 46002) Cal. Code Regs., tit 8 § 97853) Labor Code § 46204) California Code of Regulations title 8,§ 9785 (f)5) Cal. Code Regs., tit 8 § 9785.6) Cal. Code Regs., tit 8, § 9785, subd. (a)(8)7) Labor Code § 4061.58) Labor Code § 4062.29) Downey Regional Medical v. W.C.A.B (2010)WL 349498910) Downey, supra, at 2.11) Labor Code § 4065.1., Cal. Code Regs.,tit 8 § 9785.12) Labor Code § 4062.313) Senate Bill 228, Assembly Bill 227,and Senate Bill 899 have all madesubstantive changes to saidregulations and statutes.CCA Journal ArchivesNovember / December 2011www.calchiro.org