By Attorney Robert A. McLaughlin
People typically reflect on the previous year and set goals for the one to come as part of a long-standing custom known as New Year's resolutions. Here are the modifications that, in my opinion, must be made to the California Workers' Compensation system in 2023.
California follow the law and common everyday usage of words when deciding whether an Injured Worker should receive the medical care recommended for them.
To put this one in context, if you have not read resolutions 2, 4, and 5, you should do so. The guidelines used by the State of California are referred to as the Medical Treatment Utilization Schedule (MTUS), which were adopted into law by regulation. The first guideline to be covered by the MTUS is the American College of Occupational and Environmental Medicine (ACOEM).
These guidelines allege to set forth what treatment is appropriate for the diagnosis suffered by the Injured Worker as part of their work injury. The guidelines set forth the criteria the Injured Worker must meet to obtain the treatment recommended by their treating doctor.
However, it appears the physicians (allegedly highly educated people) following these guidelines do not understand the meaning of such words as "and," "or," "including," and "e.g."
We have cases in which the criteria set forth in the ACOEM for Injured Workers to obtain the treatment require either one symptom or the other. For example, without going into boring medical terminology and in lay terms, a lumbar fusion is recommended when either there are 20 degrees of movement when the lumbar back is extended or flexed of one disc on top of the other, or there are Grade 3, 4, and 5 slippages of one vertebra disc over the vertebra disc below it.
The physician will review the medicals and note there are no Grade 3, 4, or 5 slippages of the damaged vertebra disc on the one below, so the surgery is denied. However, the medical records also indicate there are 20 degrees of movement when the lumbar back is extended or flexed of one disc on top of the other. The "OR" is ignored, and the fact the Injured Worker qualifies for the surgery under the first requirement is not given any weight. Under the law of the guidelines, the Injured Worker meets the criteria to get the recommended surgery.
Not only in the law but in common everyday usage, "and," "or," "shall," "may," and "including" have specific meanings which the physician and Administrative Director (AD) cannot ignore. Sadly, they are regularly ignored in California workers' compensation law.