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The Distinction between Rating Methodology and Diagnostic Protocol

By Brad Wixen, Esq.

Brad Wixen specializes in medical-legal report review, deposing medical doctors, and legal briefs. In this article he discusses the distinctions between the AMA Guides, which rates impairment and the MTUS and treatment guidelines, which establish treatment protocols.


1. The Distinction between Rating Methodology and Diagnostic Protocol

The AMA Guides (hereafter “the Guides”) recognizes the important differences between examination tools, criteria for diagnosis, and rating impairment. Ultimately, the Guides' self-proclaimed purpose is in the realm of rating impairment alone. Criteria for a diagnosis, as well as the exam and diagnostic methodology for establishing one, are bound to change. The Guides does not claim eternal omniscience on such subjects.

“It is not the purpose of this text to discuss in detail how the physical examination is performed; textbooks are available to cover that subject. A few aspects of particular value to the impairment evaluation will be discussed subsequently.” (page 375)

Such reasoning has not gone past the California Workers' Compensation Courts. One particularly obvious example of such a phenomena is in the realm of chronic pain, which is very much an evolving subject.

The European Journal of Pain, Vol. 11, Issue 8 (2007) 895 - 902 has a very interesting survey entitled, “Diagnostic criteria for CRPS 1: Differences between patient profiles using three different diagnostic sets.” Keep in mind that Complex Regional Pain Syndrome (CRPS) is what the AMA calls an “accepted” pain disorder subject to a rating in excess of the otherwise three percent limit. Yet, there are, in fact, many different diagnostic criteria today in use to verify pain disorders.

This is embarrassingly evident in the the Guides wherein different chapter editors had different ideas about the same diseases. For instance, page 496 distinguishes between CRPS I and CRPS II whereas page 343 states that those terms (CRPS I and CRPS II) are not used as they do not actually represent a single criterion. Similarly, within the Guides there are rather broad descriptions in general terms of pain disorder on page 343 whereas on page 496 table 16 – 16 there is a very limited and rigid definition. Indeed, the editor of the Guides, Linda Cocchiarella, in her Master the Guides at page 250 acknowledges that the criteria have changed and use of that table on 16-16 is optional in her opinion.

As stated above, the California courts have taken notice of the fact that exam protocol and diagnostic criteria are subject to change and that the AMA Guides recognizes this. The well-known case of Williams v. WCAB 2010) 75 CCC 656 endorsed pain expert’s Dr. Steven Feinberg's diagnosis of complex regional pain syndrome in that particular case despite the fact that the criteria in 16-16 were not satisfied.

The Guides' self-proclaimed purpose is in the realm of rating impairment alone.
II. The Revolution of MTUS

And this brings us to the fact that California treatment guidelines have now changed. There is a hierarchy for which all treatment is charged, beginning with the MTUS. Labor Code §4610.5)

The MTUS is a revolutionary view of medicine diverging from decades of customary practice in California. On the one hand, the document is rather liberal. For instance, note appendix D which recommends early identification of patients who may benefit from rapid intervention via a multidisciplinary approach. The criteria for establishing the need for such early intervention includes such generous criteria as “a previous medical history of delayed recovery”, “inadequate employer support”, and “loss of employment for greater than four weeks.” In such instances the MTUS endorses a wide array of multidisciplinary pain intervention. All of this works to the benefit of the injured worker.

On the other hand, when it comes to such issues as opioids, narcotic medication usage, and the need for surgical intervention, the MTUS suddenly becomes very demanding in its criteria.

There appears a unifying thread throughout its reasoning though. This is a surprisingly progressive and holistic approach to the injured worker. And, it is based on the fact that treatment outcome is seldom truly anatomic. There are statistical data which can demonstrate the likelihood of effective outcome and the need for various interventions. Thus, the term “evidentiary medicine,” which is supposed to form the basis of the MTUS.

In a rather strange irony, the introduction of the MTUS is totally out of sync with the elimination of psyche as a general compensable consequential impairment. In fact, the MTUS assumes that virtually all pain that becomes chronic has some degree of potential psychological contribution. How strange then that the legislature should be removing psychiatric impairment at the very time that the treatment schedule encourages psychiatric intervention!
On the other hand, the wise applicant practitioner will focus on the multi-faceted approach to pain recognized by the MTUS. Not all of these interventions involve psychiatry. Pain also involves the neurological system including neuro cognition and this remains fully ratable even according to the AMA Guides itself. Thus, page 325 of the AMA Guides 13.3f endorses that chronic pain affects the brain. Also, that such impairments are best measured by neuro-psychological testing. And, most importantly, that the net impairment should be rated in the neurological section being a neurological disorder.

The MTUS is a revolutionary view of medicine diverging from decades of customary practice in California

III. Conflict between Protocol and Medical Legal

So, there are times when new diagnostic and treatment criteria will actually enhance applicant’s impairment rating. However, more often than not, the new criteria have actually harmed an applicant’s ability to get a more accurate rating.

Some examples: the DRE III for the spine requires some evidence of verifiable radiculopathy. (Tables 15-3,4,5) What happens if the AME or PQME physician believes that likely such radiculopathy exists, or needs to at least be ruled out? The only way to accomplish this is usually (absent compelling physical findings or positive testing on exam) by an EMG or NCV. Yet, remember that the MTUS generally disfavors such testing absent very specific treatment criteria being established. So, if the DRE criteria are not established, the result is that an applicant who is entitled to a higher DRE rating will not get that rating because the established treatment criteria do not warrant the appropriate diagnostic test.

Another example: the difference between DRE and ROM often depends on the presence of multi-level involvement. (See 15.8, page 398) Often a physician will suspect that more than one level is generating the pain. However, absent an MRI, this cannot be verified. The ROM method, more often than not, will rate significantly higher than the DRE. So, what happens if the physician reasonably suspects that there is multilevel involvement but cannot demonstrate it? Again, the MTUS has strict treatment criteria for when an MRI is appropriate. Absent those criteria being established, the applicant’s case is once again negatively affected by the lack of the ability to prove his case.

There are abundant other examples to this. For instance, endoscopy to demonstrate criteria for digestive disorders. Or, echocardiogram to show diastolic dysfunction and/or left ventricular hypertrophy. These conditions can produce a very significant rating and are almost always totally undetectable on examination.

More often than not, the new criteria have actually harmed an applicant’s ability to get a more accurate rating.

IV. Full Circle

So we return full circle to our original subject of discussion. That is the distinction between examination protocol, diagnostic procedure, the establishment of diagnosis, and treatment itself. These are all separate and distinct realms.

I would suggest that although the MTUS has been firmly established to determine appropriate treatment guidelines, these guidelines in no way affect the diagnostic criteria or the rating criteria propounded in the AMA Guides itself. One is an issue of appropriate treatment intervention. The other is an issue of rating methodology.

Labor Code §5307.27 incorporates the MTUS. Labor Code §4604.5(a) makes the MTUS presumptively correct on the issue of extent and scope of medical treatment.

In California, rating methodology pursuant to Labor Code §§4660 and 4660.1 falls under the AMA Guides. The only way to provide an appropriate rating is to perform certain tests to determine whether those criteria are met. The performance of those tests has absolutely nothing to do with whether such testing is necessary in terms of treatment intervention.

“Medical-Legal” under Labor Code §4620 still means what it always has as assisting in “proving or disproving a contested claim.” Subsection (c) elaborates that costs of medical evaluations and diagnostic tests are deemed valid costs to the extent that “the medical report is capable of proving or disproving a disputed medical fact, the determination of which is essential to an adjudication of the employee's claim for benefits.” Nothing about MTUS, UR, or IMR is mentioned. UR is limited to determining whether a proposed treatment is medically necessary only.

The AMA Guides may be able to provide a rating. It cannot provide current diagnostic criteria in an evolving world. Likewise, the MTUS may be useful as guidelines to appropriate treatment but has no business commenting on the diagnostic criteria necessary to rate the case.

I don't see how the MTUS can possibly even be relevant to what testing is required to perform an AMA Guides compliant evaluation. The AMA Guides is part of the Labor Code. This is the domain of the AMA Guides. California's workers' compensation medical-legal requirements were never built into the MTUS, which was limited to only the world of treatment.

At some point soon, there will surely be test cases in which certain necessary testing to provide an accurate impairment rating are denied by UR and the MTUS. At that point, the distinction between treatment and medical-legal will necessarily have to be resolved.

One is an issue of appropriate treatment intervention. The other is an issue of rating methodology.
Brad Wixen, Esq.

Brad Wixen began practicing law in 1991. He specializes in medical-legal report review, deposing medical doctors, and legal briefs. See Brad Wixen on the Go. For more about his services, see this site.

Tel.: (310) 205-2565
e-mail: crossexamexpert@gmail.com


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