Q: What is your interpretation of the new Labor Code indicating a chiropractor cannot continue to be the treating physician once the 24 visits are complete? Does that mean the chiropractor can still see the patient as the PTP but not actually treat? Or does it mean, the chiropractor cannot see the patient in any capacity?
A: I take the position that a chiropractor cannot see a workers’ compensation claimant in any capacity once the 24 visit cap is reached.
My reading of Labor Code section 4600 as amended is that the legislature’s clear intent was to limit chiropractic treatment and the role as a treating physician to 24 visits. I take the same position as most defense attorneys I have spoken with, i.e., once 24 visits have occurred there is no further role for a chiropractor in a workers’ compensation claim.
I recognize a contrary argument pursuant to Title 8 CCR 9785 as a strict reading of the statute as well as the Regulations does appear to support an argument that a chiropractor may be a “secondary physician” defined as “any physician other than the PTP who examines or provides treatment to the employee but is not primarily responsible for continuing management of the care of the employee.” Further an argument might be made that a chiropractor may serve as a consulting physician pursuant to Labor Code section 4050, or as a self-procured evaluator.
However I take the position that based on the plain language of Labor Code section 4600 the legislature intended to complete a “cap” of 24 visits to chiropractors. It did so by extending the pre-established 24 visit restriction to include service as a primary or other treating physician at all. The statute passed specifically references “a treating physician” as opposed to “a primary treating physician” and further specifically references “the maximum number of chiropractic visits,” as opposed to any evidence-based standard for limiting such care.
Q: Should my organization wait for a AME or PQME report before engaging in an interactive process?
A: In my general opinion, no it should not.
Nothing in a workers’ compensation claim limits prohibits, precludes or restricts engaging in an interactive process. Any employer in my general opinion should continuously engage in and document an interactive return to work process with any employee if it is on notice an injury or illness may be covered by the California Fair Employment and Housing Act.
My general opinion is California employers may have an affirmative duty to inquire as to what accommodation, if any, is reasonable and appropriate given medical issues of an employee due to any illness or injury that might be covered by the Act.
An employer must not and should not await AME or PQME reporting when engaging or deciding to engage in the interactive process in my general opinion. I often train and advise employers that the two processes, i.e., workers’ compensation mandated and regulated by the Labor Code and the interactive process mandated and regulated by the Government Code are in fact two completely separate processes, though clearly they overlap as they relate to return to work as well as medical issues related thereto.
Thus given the above, it is my general opinion that employers commence and continue interactive processes immediately upon becoming aware an injury or illness may affect an employee’s return to work and be covered by the California Fair Employment and Housing Act.
An employer should be aware any medical evidence it receives related to return to modified, alternate or regular work via its interactive process should be considered and discussed with the affected employee. This would apply regardless of whether or not the conditions requiring such a process are work related.