Happy Wednesday, dear readers!
Your humble blogger brings you a case that’s been making the rounds of proverbial water cooler talk recently – Gonzalez-Ornelas v. County of Riverside. It is, of course, on everyone’s favorite topic: IMR.
Applicant had sustained admitted knee injuries, and her doctor requested authorization for Synvisc injections to both knees. UR denied the request and applicant went the IMR route, which upheld the UR denial. Here’s where things get interesting…
The IMR report had “reviewed and considered” the report of a prior treating physician noting that conservative treatment had failed to help her symptoms, but Synvisc injections, over the past years, had in fact helped her. However, the IMR reviewer noted that the UR decision should be upheld because there was no documentation that conservative therapies had not helped.
Applicant argued that the IMR result should be thrown out, and a re-review granted, under Labor Code section 4610.6(i), on the basis that the report was procured by fraud (because the IMR reviewer said he read the prior treating physician’s report, but didn’t really); or mistake of fact in that the IMR reviewer forgot the contents of the report when issuing his decision.
The WCJ rejected applicant’s argument, reasoning that applicant was proceeding on a flawed presumption, to wit, no one could read the treating physician’s report and disagree with the physician’s conclusions.
Not so, argued the WCJ in the face of applicant’s petition for reconsideration: there was nothing to suggest actual fraud, and the weight that should be given to the treating physician’s medical records are not common knowledge, but the domain of experts, which excludes any defects from section 4610.6(i) as argued by applicant.
The WCAB reversed, reasoning that the IMR case summary itself concludes that there was a history of arthritis to the knees, and that there were still complaints of pain even after conservative care. The WCAB noted that “[d]enying authorization based upon a finding that there is ‘no documentation’ when such documentation is, in fact, in the possession of the IMR reviewer is” plainly erroneous and not the realm of expert analysis or opinion.
The WCAB awarded applicant a new review by IMR, and ordered the Administrative Director to provide a new IMR report “in accordance with this decision” which would, presumably, recognize, from page 7 of the panel opinion, “[a]s part of the new IMR, the ODG should be applied based upon the documentation in the record, which as discussed above, appears to support the provision of the Synvisc injections.”
Just think about this for a moment, dear readers. Is the WCAB telling IMR how it must rule on a UR determination? Because, if your humble blogger’s very biased, highly selective, and extremely unreliable memory serves… the whole point in not only establishing IMR but also giving it some teeth was to take medical determinations out of the hands of the lawyers at the WCAB.
Here’s something interesting to watch: what happens when IMR comes back and says that even though there is medical documentation of conservative treatment being ineffective, the documentation is insufficient? Will the WCAB just order defendant to provide the treatment?