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State of California
DEPARTMENT OF INDUSTRIAL RELATIONS Division of Workers' Compensation
FINAL STATEMENT OF REASONS
AND UPDATED INFORMATIVE DIGEST
Subject Matter:
Workers' Compensation - Medical Treatment Utilization Schedule Title 8, California Code of Regulations, sections 9792.20 through 9792.26 The Acting Administrative Director of the Division of Workers'
Compensation, pursuant to the authority granted by Labor Code sections 59,
133, 4603.5, 5307.3 and 5307.27, has adopted and amended regulations
contained in Article 5.5.2 of Chapter 4.5, Subchapter 1, Division 1, of
Title 8, California Code of Regulations, sections 9792.20 through 9792.26,
relating to the medical treatment utilization schedule (MTUS), as follows: Amended Section 9792.20 Medical Treatment Utilization Schedule-
Definitions
Amended Section 9792.21 Medical Treatment Utilization Schedule
Amended Section 9792.22 General Approaches
Amended Section 9792.23 Clinical Topics
Adopted Section 9792.23.1 Neck and Upper Back Complaints
Adopted Section 9792.23.2 Shoulder Complaints
Adopted Section 9792.23.3 Elbow Complaints
Adopted Section 9792.23.4 Forearm, Wrist, and Hand Complaints
Adopted Section 9792.23.5 Low Back Complaints
Adopted Section 9792.23.6 Knee Complaints
Adopted Section 9792.23.7 Ankle and Foot Complaints
Adopted Section 9792.23.8 Stress Related Conditions
Adopted Section 9792.23.9 Eye
Adopted Section 9792.24 Special Topics
Adopted Section 9792.24.1 Acupuncture Medical Treatment Guidelines
Adopted Section 9792.24.2 Chronic Pain Medical Treatment Guidelines (DWC
2008)
Adopted Section 9792.24.3 Postsurgical Treatment Guidelines (DWC 2008)
Adopted Section 9792.25 Presumption of Correctness, Burden of Proof
and Hierarchy of
Scientific Based Evidence
Adopted Section 9792.26 Medical Evidence Evaluation Advisory Committee UPDATE OF INITIAL STATEMENT OF REASONS As authorized by Government Code §11346.9(d), the Administrative Director
incorporates the Initial Statement of Reasons prepared in this matter. The
purposes and rationales for the regulations as set forth in the Initial
Statement of Reasons continue to apply unless noted in the Final Statement
of Reasons.
INFORMATIVE DIGEST There have been no changes to the statutes directly relating to this
rulemaking. The proposed regulation changes are summarized below. THE FOLLOWING SECTIONS WERE AMENDED FOLLOWING THE PUBLIC HEARING AND
CIRCULATED FOR A 15-DAY COMMENT PERIOD. SUMMARY OF PROPOSED CHANGES Modifications to Section 9792.20. Medical Treatment Utilization Schedule-
Definitions Subdivision (c) setting forth the definition for the term "chronic pain"
was corrected for clerical error to delete the word "tissue" from the
definition of "chronic pain." The definition was corrected to reflect the
definition as quoted from the textbook of Bonica's Management of Pain,
wherein the term is defined, in pertinent part, as "pain that extends
beyond the expected period of healing." (Turk, D. and Okifuji A. Pain Terms
and Taxonomies in Bonica's Management of Pain, 3rd edition. Philadelphia,
PA, Lippincott Williams and Wilkins:17.) Subdivision (f) setting forth the definition for the term "functional
improvement" was modified to delete the word "quantifiable" and reinstate
the original phrase "clinically significant" as contained in the original
definition of the term "functional improvement" noticed during the 45-day
comment period. Comments were submitted during the 45-day comment period
objecting to the use of the word "quantifiable," stating that functional
improvement may not actually be quantifiable. After reviewing the comments,
DWC agreed that the phrase "clinically significant" which was in the
original definition of the text of the regulations was more appropriate and
easier to be communicated by the treating physician in their reports.
Therefore, the definition of functional improvement was reverted to the
original definition as contained in the original text of the regulations. Modifications to Section 9792.23. Clinical Topics Subdivision 9792.23(b) was modified to substitute the phrase "conditions or
injuries" for the word "treatment." The modification made the text of
section 9792.23(b) consistent with the text of the statute (Lab. Code,
§4604.5(e)), and with the text of other sections of the regulations
(§9792.21(c), §9792.25(b), and §9792.25(c)(1)). Subdivision 9792.23(b)(1) was modified to substitute the word "cure" for
the phrase "surgical options for the complaint," to substitute the word
"for" for the word "in," and to substitute the phrase "who continues to
have pain that persists beyond the anticipated time of healing" for the
phrase "with chronic pain." The phrase "and supersede any applicable
chronic pain guideline in accordance with section 9792.23(b)" was added at
the end of the sentence. The purpose of the modifications were to clarify
the applicability of the Chronic Pain Medical Treatment Guidelines when
other "scientifically and evidence-based" guidelines are being used
pursuant to section 9792.23(b) to provide treatment to the injured worker.
DWC determined that the word "cure" was the appropriate word to substitute
the phrase "surgical options for the complaint" because when there is an
"absence of any cure for the patient" and the patient "continues to have
pain that persists beyond the anticipated healing," that patient has a
chronic condition and the chronic pain medical treatment guidelines apply.
Moreover, it was further determined that the definition of the term
"medical treatment" in the Labor Code encompasses the concept of "cure"
when it states "care which is reasonably required to cure or relieve." (See
Lab. Code, 4600(a).) In this regard, the use of the definition of the term
"chronic pain" (e.g., pain that persists beyond the anticipated time of
healing) was determined to be clinically useful to the treating physician
to redirect the treatment back from other guidelines pursuant to section
9792.23(b) into the MTUS, and specifically into the chronic pain medical
treatment guidelines when the case becomes chronic. The language "and
supersede any applicable chronic pain guideline in accordance with section
9792.23(b)" was added to clarify that the chronic pain medical treatment
guidelines supersede other chronic pain treatment guidelines outside of the
MTUS in accordance with section 9792.23(b). This avoids conflict between
the MTUS and other guidelines as this subdivision makes it clear than when
the injured worker is treating for chronic pain, the MTUS chronic pain
medical treatment guidelines apply. Subdivision 9792.23(b)(2) was modified to add the phrase "together with any
other applicable treatment guidelines found in the MTUS or in accordance
with section 9792.23(b)" at the end of sentence. This modification
clarifies that following surgery, other applicable treatments in addition
to postsurgical physical medicine provided under the postsurgical treatment
guidelines, will be addressed under the MTUS (e.g., postoperative pain
medications). The subdivision was further modified to add a sentence at the
end of the subdivision which states, "The postsurgical treatment guidelines
supersede any applicable postsurgical treatment guideline in accordance
with section 9792.23(b)." This language was added to clarify that the
postsurgical treatment guidelines supersede other postsurgical treatment
guidelines outside of the MTUS in accordance with section 9792.23(b). The
addition of the language avoids conflict between the MTUS and other
guidelines as this subdivision makes it clear than when the injured worker
is receiving postsurgical treatment, the MTUS postsurgical treatment
guidelines apply. Modifications to Section 9792.23.1. Neck and Upper Back Complaints Subdivision 9792.23.1(b) was modified to add the phrase "and supersede the
text in the ACOEM chapter referenced in subdivision (a) above relating to
acupuncture" at the end of the sentence. The reorganization of the MTUS, by
separating the chapters into different sections and adopting them
separately, affected the Acupuncture Medical Treatment Guidelines. Comments
were submitted during the 45-day comment period requesting that language be
inserted in the clinical topics sections of the regulations to clarify that
the Acupuncture Medical Treatment Guidelines apply and supersede the text
in the ACOEM chapters where acupuncture is addressed. DWC agreed that
clarification was necessary and inserted the clarifying language as
requested by the public in the text of the subdivision. Subdivision 9792.23.1(d) was modified to add the phrase "together with any
other applicable treatment guidelines found in the MTUS" at the end of the
first sentence of the subdivision. This sentence was modified to clarify
that following surgery, other applicable treatments, in addition to
postsurgical physical medicine provided under the postsurgical treatment
guidelines, will be addressed under the MTUS (e.g., postoperative pain
medications). The second sentence of subdivision 9792.23.1(d) was modified
to substitute the word "cure" for the phrase "surgical options for the
complaint and," to insert the word "for" after the word "cure," and to
substitute the phrase "who continues to have pain that persists