Bulletin 94-5

July 14, 1994

Clarification of the Summary Rating Reconsideration Process

Over the past year, the Division of Workers' Compensation has received a massive number of requests for reconsideration of summary ratings, filed pursuant to Labor Code Section 4061(k). A large percentage of these requests have been dismissed or denied because they were filed based on an incorrect interpretation of the relevant law. This newsline has been prepared to provide the compensation community with a better understanding of the rating reconsideration process. The following are answers to some common questions about this process.

1. Who can request reconsideration of a summary rating?

A claims administrator or unrepresented employee may request reconsideration of a summary rating. Once an employee is represented, the process is no longer available.

2. When and how is a request filed?

A request for reconsideration of a summary rating must be filed within 30 days of receipt of the rating. Since the receipt date is often well after the issuance date which appears on the rating, it's not clear when a rating was received unless a clear date-stamped copy accompanies the request.

A request must be filed at the office of the administrative director. A form is available-- the DEU Form 103-- which although not required, is recommended. Forms are available at any Disability Evaluation Unit or Information and Assistance Office throughout the state.

A request will not be accepted for filing unless it includes a copy of the summary rating, a copy of the medical report upon which the rating is based, and proof of service on the non-requesting party. The form is useful since it includes a proof of service box.

Finally, The request must be specific. Under Labor Code Section 4061(k), a request for reconsideration of a summary rating must "specify the reasons the rating should be reconsidered." Therefore, a request which does not specify a reason will be denied.

3. Can a request be based on any disagreement with a rating?

No. The request must specify deficiencies which fall within one of the following categories:

(a) the evaluator failed to address one or more issues;

(b) the evaluator failed to completely address one or more issues;

(c) the evaluation was not prepared in accordance with required procedures; or

(d) the summary rating was incorrectly calculated.

Each of these categories is discussed in more detail below:

(a) The evaluator failed to address one or more issues.

For the most part, the evaluation will address an employee's permanent impairment and limitations. Although issues concerning treatment may also be addressed, these will generally not impact on the summary rating. An obvious failure to address an issue exists where the evaluator simply fails to discuss the employee's level of permanent disability.

A more difficult scenario occurs where, based on information submitted to the evaluator, or based on a discussion in the report, an issue is presented but not addressed. This might occur, for example, where an evaluator fails to address the issue of apportionment, despite records indicating the need to address this issue.

If an issue is not addressed, the request will be granted and the decision will order the evaluator to address the omitted issue in a supplemental report.

(b) The evaluator failed to completely address one or more issues.

This is generally a more subtle deficiency than that described in (a). It occurs when the evaluator does discuss an issue, but fails to address a necessary component of the issue. This will occur, for example, when an employee is being evaluated for both a leg and neck injury, and the evaluator fails to include any mention of the leg in the discussion of permanent disability. It may also occur where an evaluator incompletely discusses a factor or factors of disability-- e.g., where there is a general statement in the report that the employee has pain, but no further discussion of where the pain occurs, or its frequency and severity.

(c) The evaluation was not prepared in accordance with required procedures.

The statute refers to guidelines for medical evaluations adopted by the Industrial Medical Council (IMC) under paragraph (2) or (3) of subdivision (i) of Section 139.2. As of this writing, the IMC has adopted guidelines for evaluation of psychiatric, pulmonary, cardiac, and immunologic evaluations, as well as general QME ethical guidelines. These guidelines are available through the executive director of the IMC, P.O. Box 8888, San Francisco, CA 94128-8888.

The administrative director has interpreted this requirement to include not only the IMC procedures, but statutory and regulatory requirements which pertain generally to the preparation of evaluations, such as Labor Code [[section]] 4062.2 (d), Labor Code [[section]] 4628, and 8 CCR [[section]]10978.

However, if an error or omission in an evaluation does not impact on the finding of permanent disability and the rating, then the request for reconsideration of the rating will not be granted.

Unless there is a clear disregard for the IMC guidelines, a request will generally not be granted where the issue concerns the appropriateness of a medical procedure or test, or whether an evaluator's opinion is medically sound. This goes to the weight and credibility of a medical opinion, and is more properly within the jurisdiction of the workers' compensation appeals board.

(d) The summary rating was incorrectly calculated.

This is usually straightforward: i.e., the rater rated a medical evaluation one way, and the requesting party thinks it should be rated another way. Sometimes there is simply an arithmetic error, or the wrong age was used in the calculation, which can be easily corrected.

Occasionally there is an issue as to whether a proper occupational group number was used. If there is a factual dispute as to the employee's occupation, this can only be resolved by the appeals board, and the request will be denied. On the other hand, if both parties clearly agree on the employee's occupation, then the request may be granted if it appears the wrong occupational number was used.

4. Are there any specific types of disputes which cannot be resolved by filing a request for reconsideration of a rating?

Yes. Factual or credibility issues cannot be decided in this proceeding. Very often, requests involve issues concerning an underlying factual dispute, or the credibility of either the employee or evaluating physician. These disputes can only be adjudicated before the workers' compensation appeals board, not before the administrative director.

For example, many requests for reconsideration have been received based on an employer's allegation that an evaluating physician's opinion is simply incorrect, or that the physician is known to be biased or incompetent. Unless it is shown that there was a missed issue or procedural error in the evaluation, these types of requests are denied.

Often an employee will complain that the physician failed to properly assess the employee's complaints. Unless it is clear that the evaluator failed to take a proper examination, or that the employee's complaints were ignored, this type of request falls into the credibility category and will be denied.

5. Does the administrative director have authority to grant reconsideration of a rating based on an evaluator's findings concerning apportionment?

No. If the issue of apportionment has been addressed at all, the administrative director does not have authority to grant a request for reconsideration based on an allegation that the evaluator's findings regarding apportionment are incorrect.

In accordance with Labor Code Section 4061(j), the Diability Evaluation Unit will refer any evaluation dealing with apportionment to a workers' compensation judge who will determine

whether or not apportionment is consistent with the law. This determination is not subject to review by the administrative director .

6. Is there currently a backlog of requests that have not been decided?

Unfortunately, due to the high volume of requests received over the last year, there is a significant backlog of pending requests, with some cases pending over six months. The division's legal and support staff will increase in the coming months, and it is expected that the backlog will soon be depleted.

One reason for the backlog is that employees and claims administrators have filed requests for reconsideration of a summary rating any time there is a disagreement with the rating, regardless of whether or not the request is appropriate. The majority of the requests which have been received to date are not based on proper statutory grounds, but concern factual disputes or credibility issues as discussed above, and are routinely denied for this reason.

7. Are benefits required to be paid to a claimant while a request is pending?

Under Labor Code Section 4061(l), if a medical evaluation resolves any issue so as to require an employer to provide compensation, the employer shall commence the payment of compensation or promptly commence proceedings before the appeals board to resolve the dispute. Therefore, if despite the filing of a request, it is clear that a certain level of permanent disability is payable to the claimant, permanent disability payments to the claimant should not be withheld pending receipt of the administrative director's decision.

The administrative director may assess administrative or civil penalties against a claims administrator if it is found that benefits are being delayed because of the inappropriate use of the rating reconsideration process.

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