We have all had experience with primary treating physicians who operate a little bit on the lazy side with respect to their PR-2 reporting.

Oftentimes, this laziness takes the form of “cut-and-paste” reporting where it’s difficult to decipher what the details are from this latest visit, versus those of prior visits. Other times, there are no changes to the report at all other than a recommendation to refill prescription medications. But what about when the PR-2 report fails to address something significant, specifically work status and work restrictions?

Under Labor Code Section 6409(a), “Every physician who attends to any injured employee shall file a complete report of that occupational injury or occupational illness in a manner prescribed by the administrative director of the Division of Workers’ Compensation. The report shall include a diagnosis, the injured employee’s description of how the injury or illness occurred, any treatment rendered at the time of the examination, any work restrictions resulting from the injury or illness, a treatment plan and other content as provided by the administrative director.

This is addressed primarily in the doctor’s first report of occupational injury or illness and is relevant, as it is part of the early state reporting that helps “kick off” the occupational claim. For the most part, these reports tend to be fairly complete with respect to reporting of the occupational injury, including work status and work restrictions. However, it’s the subsequent reporting by the primary treating physician that generally becomes the issue.

Title 8 of the California Code of Regulations Section 9785 defines the primary treating physician as the physician "who is primarily responsible for managing the care of the employee, and who has examined the employee at least once for the purpose of rendering or prescribing treatment and has monitored the effect of the treatment thereafter.”

As part of their duties under Section 9785, PTPs are required to provide PR-2 progress reports every 45 days from the last report of any type, and must include the following:

• Any significant changes in condition.
• Any significant changes in the treatment plan.
• The employee’s condition permits return to modified or regular work.
• The employee’s condition requires the employee to leave work or requires changes in work restrictions or modifications.
• The employee is released from care.
• The employee’s permanent disability precludes, or is likely to preclude, the employee from engaging in the usual occupation or the occupation held at the time of injury.

For the purposes of this article, we’re going to address the issues associated with failures on the part of the PTP to effectively report work restrictions and work modifications.

Unfortunately, it is far too common to have primary treating physicians who report work status and work restrictions by saying something along the lines of “work-related injury,” “industrial injury,” or just leave the section blank altogether. I actually had one claim where the PTP failed to provide a narrative as to what the work restrictions were, but instead wrote, “It is my understanding that the employer cannot accommodate” without ever stating what it was the employer was unable to accommodate.

This type of lazy reporting is far too common among PTP’s, and unfortunately creates ambiguity and uncertainty as to whether benefits are warranted or whether an accommodation may be made for any medically imposed work restrictions.

It’s worth reflecting on our own business and caseloads and thinking about how many times we’ve appeared before the court on issues of whether benefits should have, or should not have, been paid, only to find defective reporting center stage.

Remedies for the applicant

To really effectively address the remedies for the applicant associated with defective PTP reporting relating to work status and work restrictions, one must proceed on the notion that naturally, every applicant "would much rather be working full time, on full duty, than to be collecting benefits while not working.”

Now, I know that for some of us, including myself, this notion is a bit of a stretch, as the nature of the beast tends to be, reward for less work will always be preferred to the same reward for harder work. The Labor Code inherently attempts to address this somewhat cynical view by paying the applicant only two-thirds of what his/her average weekly wage was while working, but is that really enough of a deterrent to encourage the applicant to actively pursue returning to work? That’s probably a debate for another day.

Should applicants want to address defects in PTP reporting, they have, among a few others, two primary remedies:

• They can request a supplemental report, asking the PTP to address work status and work restrictions as required by 8 CCR Section 9785.
• Petition to change when the treating PTP is not meeting reporting obligations.

Now ask yourself: Where an applicant is already receiving temporary disability benefits, how often have applicants requested a supplemental report or petitioned for a new PTP because the PTP failed to provide a work status or work restrictions, which could result in the termination of benefits?

The answer is most likely, is few and far between.

(Editor’s note: The few times this has come up is when the applicant’s job pays well above the maximum average weekly wage, or in situations where work restrictions from another doctor threaten the applicant’s ability to use employer-provided housing.)

Remedies for the defendant

In this situation, it is generally the defendant who is exercising his available remedies, which, among others, consist primarily of:

• Promptly objecting to the report of the PTP under Labor Code Section 4062 based on the medical determination of the PTP. In most instances, we are doing this for the purposes of triggering the med-legal process to obtain a PQME in a desired specialty to evaluate the applicant and move the claim toward an eventual permanent and stationary finding.
• Petition to change the PTP for reporting failures or inadequate reports, which, under 8 CCR Section 9786, requires good cause, when under 9785, the reports are either not timely submitted or are inadequate due to “material omissions or deficiencies.”
• Arguing that the report is not substantial medical evidence. This is something that is generally part of our objection to the report itself.

These are tactics that defendants regularly employ to drive the claim toward an eventual settlement. However, they are not typically used to deal with defective reporting.

Despite there being no specific instances within the Labor Code, nor within the CCR, that specifically place the onus on the defendants to ensure complete reporting, there have been times when judges have ordered defendants to remedy flawed PTP reporting.

While cases like McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) grant judges broad discretion in conducting discovery, directing defendants to tell the PTP to place something in the reporting can be problematic.

Regardless of what the thing is, this can be awkward when the PTPs have elected not to include that thing in their reporting. For example, some PTPs refuse to review and comment on sub rosa video, no matter how many times defense attorneys have sent it to them.

Furthermore, what happens when the defendant asks the PTP to address work status or work restrictions, and the PTP takes the applicant completely off disability altogether? This opens the door for the applicant’s attorney to argue that the defendant influenced the PTP’s decision to remove the applicant from disability.

Placing the burden on defendants to fix sloppy PTP reporting creates a slippery slope. After all, the applicant already has a remedy to fix flawed reporting: The PTP can be asked to address the applicant’s ability to work, or petition for a new PTP.

Despite these problems with putting the burden on defendants to fix PTP reporting, courts have still placed the burden on defendants to ensure that PTPs comment on work status and work restrictions.

8 CCR Section 9785(f)(7) states that a primary treating physician shall, unless good cause is shown, within 20 days, report when “the claims administrator reasonably requests appropriate additional information that is necessary to administer the claim. ‘Necessary’ information is that which directly affects the provision of compensation benefits as defined in Labor Code Section 3207.”

This would reasonably include work status and work restrictions, as they determine the applicant’s level of disability and the employer’s ability to accommodate, thus affecting compensation benefits.

This section does not place the burden on the defendants to demand or direct a specific type of reporting, but rather how the PTP is to respond once a request for information, like work status and work restrictions, which are “necessary for administering the claim,” is made.

Creating a paper trail to cure defective reporting can be quite helpful. Here are some tips for defense attorneys:

Adjuster and employer

Encourage the employer to offer the applicant his job back because a blank or “work-related injury” explanation does not amount to work restrictions. Therefore, by the employer offering the applicant his job back due to there being no work restrictions, the employer met his burden to offer the applicant work based on the reporting.

If the applicant doesn’t return to work or respond with the fact that there are work restrictions, proceed accordingly by ensuring temporary disability benefits can be discontinued.

Applicant's attorney

Send the applicant’s attorney a letter to make him aware of the defective reporting and ensure that the letter addresses the following:

• Objection to the report as not substantial medical evidence due to the defective reporting.
• Address the fact that, naturally, the applicant would like to return to work, as there are no restrictions, and to please respond to the employer’s letter offering a return to work. Shift the onus to return to work.
• If there are restrictions, instruct the PTP to report them, as the applicant may lose benefits if he does not.
• Finally, remind the applicant’s attorney of the claimant's right to petition for a new primary treating physician due to the defective reporting, and that the defective reporting may be delaying the applicant’s return to work or receipt of benefits.

One strategy may be to place the responsibility of returning to work on the applicant to ensure he is a proactive part of the process. We can achieve this goal by sending the applicant return-to-work offers and offers of modified work.

In turn, this places a portion of the responsibility on the applicant to ensure that his ability to work is addressed with the primary treating physician, rather than that burden shifting solely to the defendants and becoming an issue we have to address at trial.

By creating a paper trail, defense attorneys have:

• Alerted all parties to the defective reporting.
• Offered work based on the nonexistence of work restrictions.
• Put the applicant on notice to act in order to retain benefits if he believes there were work restrictions that were not properly reported.
• Provided the remedies available to the applicant under the Labor Code to address the defective reporting so he does not lose benefits.
• Protected our clients from being ordered to pay benefits because they did not offer work or appeared to ignore a defective report.

David W. Stewart is an associate attorney at Bradford & Barthel’s Redding location. This entry is republished from Keenan's blog.