Physical therapists are playing an increasing role in pain management in workers’ compensation as the prescription of opioids has been curtailed over concerns over abuse of those drugs. But at least in the Nebraska Workers’ Compensation Court, physical therapists (PTs) may not be able to meet their increased responsibilities due to their ambiguous status as experts under court rules.
This ambiguity creates confusion about what a physical therapist can testify to through written report in the Nebraska Workers’ Compensation Court. If physical therapists are going to take the lead in treating chronic pain this could mean that a medical doctor would have to ratify the suggestions of a PT when it comes to treating pain for those recommendations to have any weight in the court.
Physician-ratification of functional capacity evaluation tests performed by PTs amounts to an informal requirement for the appointment of a vocational rehabilitation counselor for a loss of earning power evaluation. I’ve written about the gap or squeeze in workers’ compensation cases when injured workers can go for weeks or even months without receiving either temporary or permanent benefits. In my experience the practice of requiring doctor endorsement of FCE results delays the payment of permanent disability benefits and often burdens injured worker with additional expenses.
I believe the requirement that doctors endorse the recommendations of physical therapists would also serve to delay and make it more costly injured workers to get treatment for chronic pain recommended by physical therapists. Additional delay and cost could make pain management without the use of opioid drugs more difficult.
Lawyers for injured workers in Nebraska should not accept the practice of physician-endorsement of physical therapist reports. I had some recent success in getting a loss of earning power ordered based just on FCE results. (Feel free to contact we directly for a copy of the order) But even in that hearing I made sure that those FCE results were endorsed by a doctor.
The plaintiff’s bar should also look to the legislature or the Nebraska Workers’ Compensation Court rule making process to allow the use of PT reports without doctor-endorsement. Last year the court rejected an effort to allow physician assistants to testify by Rule 10 report by a 5-2 margin. There may be a better chance for physical therapist reports to admitted on the same basis as doctors as physical therapists are already included in the language of Rule 10.
Most lawyers “fix” P.A. reports by having the supervising doctor sign the report. I’ve had P.As take offense at that request. I’ve also had defense lawyers attack medical opinions on hearsay grounds by getting a medical doctor to admit that the P.A. is the one with first-hand knowledge about the injured worker.
Lawyers are stuck with two options if a P.A report is the sole source of expert opinion from a treating provider: 1) Call the P.A. live as a witness in the same manner as in a civil trial or 2) retain an examiner.
Neither of those is a great option. The best fix would be for the Legislature or the Nebraska Workers’ Compensation Court to amend Rule 10 to allow P.A reports into evidence.