WSR 97-09-036

PERMANENT RULES

DEPARTMENT OF

LABOR AND INDUSTRIES

[Filed April 14, 1997, 10:40 a.m.]

Date of Adoption: April 14, 1997.

Purpose: Current rules are unclear and inconsistent with regard to who may perform an impairment rating. Changes are necessary to clarify the language and make the rules consistent.

Citation of Existing Rules Affected by this Order: Amending WAC 296-20-200, 296-20-210, 296-20-220, and 296-23-265.

Statutory Authority for Adoption: RCW 51.04.020, 51.04.030, 51.32.112, 51.32.114, 51.36.015.

Adopted under notice filed as WSR 97-01-123 on December 19, 1996.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, amended 0, repealed 0; Federal Rules or Standards: New 0, amended 0, repealed 0; or Recently Enacted State Statutes: New 0, amended 0, repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, amended 0, repealed 0.

Number of Sections Adopted on the Agency's own Initiative: New 7, amended 4, repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 7, amended 4, repealed 0.

Number of Sections Adopted using Negotiated Rule Making: New 0, amended 0, repealed 0; Pilot Rule Making: New 0, amended 0, repealed 0; or Other Alternative Rule Making: New 0, amended 0, repealed 0.

Effective Date of Rule: Thirty-one days after filing.

April 8, 1997

Gary Moore

Director

AMENDATORY SECTION (Amending WSR 91-07-008, filed 3/8/91, effective 5/1/91)

WAC 296-20-200 General information. (1) The department of labor and industries has promulgated the following rules and categories to provide a comprehensive system of classifying unspecified permanent partial disabilities in the proportion they reasonably bear to total bodily impairment. The department's objectives are to reduce litigation and establish more certainty and uniformity in the rating of unspecified permanent partial disabilities pursuant to RCW 51.32.080(2).

(2) The following system of rules and categories directs the ((examining physician's)) examiner's attention to the actual conditions found and establishes a uniform system for conducting rating examinations and reporting findings and conclusions in accord with broadly accepted medical principles.

The evaluation of bodily impairment must be made by ((medical)) experts authorized to perform rating examinations. This system recognizes and provides for this. After conducting the examination, the ((examining physician)) examiner will choose the appropriate category for each bodily area or system involved in the particular claim and include this information in the report. The ((physician)) examiner will, therefore, in addition to describing the worker's condition in the report, submit the conclusions as to the relative severity of the impairment by giving it in terms of a defined condition rather than a personal opinion as to a percentage figure. In the final section of this system of categories and rules are some rules for determining disabilities and the classification of disabilities in bodily impairment is listed for each category. These last provisions are for the department's administrative use in acting upon the ((medical)) expert opinions which have been submitted to it.

(3) In preparing this system, the department has complied with its duty to enact rules classifying unspecified disabilities in light of statutory references to nationally recognized standards or guides for determining various bodily impairments. Accordingly, the department has obtained and acted upon sound established medical opinion in thus classifying unspecified disabilities in the reasonable proportion they bear to total bodily impairment. In framing descriptive language of the categories and in assigning a percentage of disability, careful consideration has been given to nationally recognized medical standards and guides. Both are matters calling for the use of expert medical knowledge. For this reason, the meaning given the words used in this set of categories and accompanying rules, unless the text or context clearly indicates the contrary, is the meaning attached to the words in normal medical usage.

(4) The categories describe levels of physical and mental impairment. Impairment is anatomic or functional abnormality or loss of function after maximum medical rehabilitation has been achieved. This is the meaning of "impairment" as the word is used in the guides mentioned above. This standard applies to all persons equally, regardless of factors other than loss of physical or mental function. Impairment is evaluated without reference to the nature of injury or the treatment therefore, but is based on the functional loss due to the injury or occupational disease. The categories have been framed to include conditions in other bodily areas which derive from the primary impairment. The categories also include the presence of pain, tenderness and other complaints. Workers with comparable loss of function thus receive comparable awards.

(5) These rules and categories (WAC 296-20-200 through 296-20-690) shall only be applicable to compensable injuries occurring on or after the effective date of these rules and categories.

(6) These rules and categories (WAC 296-20-200 through 296-20-690) shall be applicable only to cases of permanent partial disability. They have no applicability to determinations of permanent total disability.

[Statutory Authority: RCW 51.04.020(4) and 51.04.030. 91-07-008, 296-20-200, filed 3/8/91, effective 5/1/91; Order 74-32, 296-20-200, filed 6/21/74, effective 10/1/74.]

AMENDATORY SECTION (Amending Order 88-09, filed 6/24/88)

WAC 296-20-210 General rules. These general rules establish a uniform standard for conducting examinations and submitting reports of examinations. These general rules must be followed by ((physicians)) doctors who make examinations or evaluations of permanent bodily impairment.

(1) Examinations for the ((medical)) determination of the extent of permanent bodily impairment shall be made only by ((physicians)) doctors currently licensed ((to practice medicine)) in medicine and surgery (including osteopathic and podiatric) or dentistry, and department-approved chiropractors. A chiropractic evaluation of permanent impairment may be performed only where the worker has been clinically managed by a chiropractor.

(2) Whenever an examination is made, the ((physician)) examiner shall record, among other pertinent information, the complete history as obtained from the person examined; the complete history of past injuries and diseases; the complaints; the age, sex, height and weight; x-ray findings and diagnostic tests made or reviewed in connection with the examination; the diagnosis; and all findings, including negative findings, in all bodily areas and systems where a detailed review of systems reveals past or present complaints. The ((physician)) examiner shall record his conclusions as to: Whether the residuals of the injury are fixed; whether treatment is required for the injury and, if so, any treatment shall be described. If the ((examining physician)) examiner finds residuals of the injury are fixed, he shall record the appropriate category or categories of permanent impairment for diagnoses attributable to the industrial injury or occupational disease. Conditions or impairments not attributable to the industrial injury or occupational disease shall be described and diagnosed in the report, with a description of how they affect the person examined and the appropriate category of permanent impairment where possible.

(3) The ((examining physician)) examiner shall not assign a percentage figure for permanent bodily impairment described in the categories established herein.

(4) Reports shall specify diagnoses and medical terms as listed in current procedural terminology (CPT), current medical information and terminology (CMIT), international classification of diseases adopted (ICDA), or standard nomenclature of disease, except when otherwise specified in these rules.

(5) Workers who are scheduled for disability examinations are allowed to bring with them an accompanying person to be present during the physical examination. The accompanying person cannot be compensated in any manner, except that language interpreters may be necessary for the communication process and may be reimbursed for interpretative services.

The department may designate those conditions under which the accompanying person is allowed to be present during the disability examination process.

[Statutory Authority: RCW 51.04.020(4) and 51.04.030. 88-14-012 (Order 88-09), 296-20-210, filed 6/24/88; Order 74-32, 296-20-210, filed 6/21/74, effective 10/1/74.]

AMENDATORY SECTION (Amending Order 79-18, filed 11/30/79, effective 1/1/80)

WAC 296-20-220 Special rules for evaluation of permanent bodily impairment. (1) Evaluations of permanent bodily impairment using categories require uniformity in procedure and terminology. The following rules have been enacted to produce this uniformity and shall apply to all evaluations of permanent impairment of an unspecified nature.

(a) Gradations of relative severity shall be expressed by the words "minimal," "mild," "moderate" and "marked" in an ascending scale. "Minimal" shall describe deviations from normal responses which are not medically significant. "Mild," "moderate" and "marked" shall describe ranges of medically significant deviations from normal responses. "Mild" shall describe the least severe third. "Moderate" shall describe the middle third. "Marked" shall describe the most severe third.

(b) "Permanent" describes those conditions which are fixed, lasting and stable, and from which within the limits of medical probability, further recovery is not expected.

(c) "Impairment" means a loss of physical or mental function.

(d) "Total bodily impairment," as used in these rules, is the loss of physical or mental function which is essentially complete short of death.

(e) The ((examining physician)) examiner shall not assign a percentage figure for permanent bodily impairment described in the categories established herein.

(f) The method of evaluating impairment levels is by selection of the appropriate level of impairment. These descriptive levels are called "categories." Assessments of the level of impairment are to be made by comparing the condition of the injured workman with the conditions described in the categories and selecting the most appropriate category.

These rules and categories for various bodily areas and systems provide a comprehensive system for the measurement of disabling conditions which are not already provided for in the list of specified permanent partial disabilities in RCW 51.32.080(1). Disabilities resulting from loss of central visual acuity, loss of an eye by enucleation, loss of hearing, amputation or loss of function of the extremities will continue to be evaluated as elsewhere provided in RCW 51.32.080.

The categories have been classified in percentages in reasonable proportion to total bodily impairment for the purpose of determining the proper award. Provision has been made for correctly weighing the overall impairment due to particular injuries or occupational disease in cases in which there are preexisting impairments.

(g) The categories of the various bodily areas and systems are listed in the order of increasing impairment except as otherwise specified. Where several categories are given for the evaluation of the extent of permanent bodily impairment, the impairments in the higher numbered categories, unless otherwise specified, include the impairments in the lesser numbered categories. No category for a condition due to an injury shall be selected unless that condition is permanent as defined by these rules.

The ((examining physician)) examiner shall select the one category which most accurately indicates the overall degree of permanent impairment unless otherwise instructed. Where there is language in more than one category which may appear applicable, the category which most accurately reflects the overall impairment shall be selected.

The categories include appropriate subjective complaints in an ascending scale in keeping with the severity of objective findings, thus a higher or lower category is not to be selected purely on the basis of unusually great or minor complaints.

(h) When the examination discloses a preexisting permanent bodily impairment in the area of the injury, the ((examining physician)) examiner shall report the findings and any category of impairment appropriate to the ((workman's)) worker's condition prior to ((his)) the industrial injury in addition to the findings and the categories appropriate to the ((workman's)) worker's condition after the injury.

(i) Objective physical or clinical findings are those findings on examination which are independent of voluntary action and can be seen, felt, or consistently measured by ((examining physicians)) examiners.

(j) Subjective complaints or symptoms are those perceived only by the senses and feelings of the person being examined which cannot be independently proved or established.

(k) Muscle spasm as used in these rules is an involuntary contraction of a muscle or group of muscles of a more than momentary nature.

(l) An involuntary action is one performed independently of the will.

(m) These special rules for evaluation of permanent bodily impairment shall apply to all examinations for the evaluation of impairment, in accordance with RCW 51.32.080, for the body areas or systems covered by or enumerated in WAC 296-20-230 through 296-20-660.

(n) The rules for evaluation of each body area or system are an integral part of the categories for that body area or system.

(o) In cases of injury or occupational disease of bodily areas and/or systems which are not included in these categories or rules and which do not involve loss of hearing, loss of central visual acuity, loss of an eye by enucleation or loss of the extremities or use thereof, ((examining physicians)) examiners shall determine the impairment of such bodily areas and/or systems in terms of percentage of total bodily impairment.

(p) The words used in the categories of impairments, in the rules for evaluation of specific impairments, the general rules, and the special rules shall be deemed, unless the context indicates the contrary, to have their general and accepted medical meanings.

(q) The rating of impairment due to total joint replacement shall be in accordance with the limitation of motion guidelines as set forth in the "Guides to the Evaluation of Permanent Impairment" of American Medical Association, with department of labor and industries acknowledgement of responsibility for failure of prostheses beyond the seven year limitation.

[Statutory Authority: RCW 51.04.030 and 51.16.035. 79-12-086 (Order 79-18), 296-20-220, filed 11/30/79, effective 1/1/80; Order 74-32, 296-20-220, filed 6/21/74, effective 10/1/74.]

AMENDATORY SECTION (Amending WSR 95-04-056, filed 1/26/95, effective 3/1/95)

WAC 296-23-265 Who may perform independent medical examinations ((examiner.))? (((1) Independent medical examinations must be performed in accordance with WAC 296-20-200 by examiners approved by the department and licensed to perform medicine and surgery, osteopathic medicine and surgery, podiatric medicine and surgery, chiropractic, or dentistry except:

(a) Attending physicians licensed to perform medicine and surgery, osteopathic medicine and surgery, podiatric medicine and surgery, or dentistry may perform an impairment rating examination for a worker under their care at the direction of the state fund or self-insurer.

(b) The independent medical examination may be performed by a board certified specialist licensed to perform medicine and surgery, osteopathic medicine and surgery, podiatric medicine and surgery, or dentistry selected by the department or the self-insurer if the worker does not live in Washington, Oregon, or Idaho.

(c) The independent medical examination may be performed by a treating physician in a department approved chronic pain management program accredited by the commission on accreditation of rehabilitation facilities. The examiner must be licensed to perform medicine and surgery, osteopathic medicine and surgery, podiatric medicine and surgery, or dentistry.

(2) All other examiners who wish to do independent medical examinations of workers under Title 51 RCW, whether purchased by the department or self-insurers, must:

(a) Submit a completed department application to the medical director at the department of labor and industries; and

(b) Receive the medical director's approval to be an "approved examiner."

(3) Approved examiners will be listed on the department's approved examiners list. Examiners may be suspended or removed from the approved examiners list by the medical director. Such examiners shall not receive worker referrals from the department or self-insurers.

(4) The factors the medical director may consider in approving or disapproving or suspending examiners include, but are not limited to, any one or a combination of the following:

(a) Board certification;

(b) Complaints from workers about the conduct of the examiner;

(c) Disciplinary proceedings or actions;

(d) Experience in direct patient care in the area of specialty;

(e) Ability to effectively convey and substantiate medical opinions and conclusions concerning workers;

(f) Quality and timeliness of reports; and

(g) Geographical need of the department and self-insurer.

(5) Examiners must be available and willing to testify at the department fee schedule rate on behalf of the department, worker, or employer.

(6) Complaints from workers about examiner conduct during an independent medical examination must be promptly forwarded from self-insurer and department staff to the office of the medical director.

(7) The standards for independent medical examiners, the application for approved examiner status and maximum fee schedule for performing examinations are published in a medical examiners' handbook available from the Office of the Medical Director, Department of Labor and Industries, Olympia, WA 98504.

(8) Fees for independent medical examinations are determined by the dollar value published in the medical examiners' handbook.)) Doctors in Washington, Oregon, or Idaho who wish to perform independent medical examinations for the department or self-insurers providing coverage to workers covered under Title 51 RCW must be approved examiners. Independent medical examinations must be performed according to WAC 296-20-200 by the following:

[Open Style:Columns Off]

Doctors licensed to practice:

Osteopathic Podiatric

Medicine & medicine & medicine &

Examiner is: surgery surgery surgery Chiropractic Dentistry



In Washington, Oregon, or

Idaho and is approved by

department to perform IMEs Yes Yes Yes Yes Yes



Not in Washington, Oregon, or

Idaho and is a board certified

specialist Yes Yes Yes No Yes



The treating doctor in a

department approved chronic

pain management program Yes Yes Yes No Yes





[Open Style:Columns On]

[Statutory Authority: RCW 51.32.112. 95-04-056, 296-23-265, filed 1/26/95, effective 3/1/95. Statutory Authority: RCW 51.04.020, 51.04.030 and 1993 c 159. 93-16-072, 296-23-265, filed 8/1/93, effective 9/1/93.]

NEW SECTION

WAC 296-23-26501 How do doctors become approved examiners? Doctors must submit a completed department application to the provider review and education unit at the Department of Labor and Industries, P.O. Box 44322, Olympia, WA 98504 and receive the medical director's approval. Approved examiners will be included on the department's approved examiners list.

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NEW SECTION

WAC 296-23-26502 Where can doctors get an application to become an approved examiner and other information about independent medical examinations? The application for approved examiner status and the standards for independent medical examiners are published in the Medical Examiners' Handbook available from the department of labor and industries.

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NEW SECTION

WAC 296-23-26503 What factors does the medical director consider in approving, suspending or removing doctors from the approved examiners list? The medical director may consider several factors in approving, disapproving, or suspending examiners. Examples include, but are not limited to:

(1) Board certification;

(2) Complaints from workers about the conduct of the examiner (see WAC 296-23-26506);

(3) Disciplinary proceedings or actions;

(4) Experience in direct patient care in the area of specialty;

(5) Ability to effectively convey and substantiate medical opinions and conclusions concerning workers;

(6) Quality and timeliness of reports;

(7) Geographical need of the department and self-insurer;

(8) Availability and willingness to testify on behalf of the department, worker, or employer; and

(9) Acceptance of the department fee schedule rate for testimony.

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NEW SECTION

WAC 296-23-26504 What happens if an examiner is suspended or removed from the approved examiner list by the medical director? Examiners who are suspended or removed from the approved examiners list will not receive examination referrals from the department or self-insurers. In addition, suspended or removed examiners will not be reimbursed by the department or self-insurer for examinations performed at the request of other referral sources.

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NEW SECTION

WAC 296-23-26505 Is there a fee schedule for independent medical examinations? The maximum fee schedule for performing independent medical examinations is published in the Medical Examiners' Handbook available from the department.

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NEW SECTION

WAC 296-23-26506 Can a worker file a complaint about an independent medical examiner's conduct? Workers can send written complaints about the examiner's conduct during an independent medical examination to the self-insurer or department. Complaints received by the self-insurer and department staff must be promptly forwarded to the provider review and education unit. Based on the nature of the complaint, the department may refer the complaint to the department of health.

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NEW SECTION

WAC 296-23-267 When may attending doctors perform impairment rating examinations? Attending doctors may perform impairment rating examinations for workers under their care at the direction of the state fund or self-insurer if licensed to perform:

Medicine and surgery;

Osteopathic medicine and surgery;

Podiatric medicine and surgery;

Dentistry; or

Chiropractic (chiropractors must be on the approved examiners list).

Attending doctors performing rating exams must be available and willing to testify on behalf of the department, worker, or employer and accept the department fee schedule rate for testimony.

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