IMR Appeal Must Be Verified; 20 Days Granted to Cure Defect

August 29th, 2014 No comments

Greetings, dear readers!

As much as it pains your humble blogger to allow his oft-cited and sometimes cursed pages to fall silent for so long a time, justice will not serve itself, and your humble blogger is always ready to answer its calls.  (Fear not, dear readers, your subscription fees are being refunded even as you read this…)

Anywho, I have returned, in this case, to help the Workers’ Compensation Appeals Board deliver a very important message: verified means verified.  By contrast, “verified”, as used by the Labor Code and the California Code of Regulations, does not mean “not verified”.

The case on point is that of Torres v. Contra Costa Schools Insurance Group.  Mr. Torres sustained a few injuries and was the receiving medical benefits, including but not limited to Duragesic patches (pain meds).  At one point, a UR review denied authorization for more patches, as it had requested (but not received) additional information on why this particular medication was being recommended.

A UR denial went on to an IMR review, which held firm the reported 80% UR affirmation rate, and likewise denied the treatment.

Not deterred, applicant pursued the additional remedies available under Labor Code section 4610.6(h), seeking to appeal the determination of the administrative director (IMR).  However, applicant failed to provide a verified petition, as required by 4610.6(h) (“[a] determination of the administrative director pursuant to this section may be reviewed only by a verified appeal…”).

So, then, dear readers, what’s to be done?

Defendant sought dismissal of this appeal, as applicant had failed to provide a verified appeal.  After all, California Code of Regulations section 10450 provides that “[a] request for action by the [WCAB] … shall be made by petition” (subsection (a)); and “[a]ll petitions and answers shall be verified under penalty of perjury … [a] failure to comply with the verification requirement constitutes a valid ground for summarily dismissing or denying a petition…” (subsection (e)).

Having weighed the issues, the WCAB decided to provide a “significant panel decision,” allowing applicant 20 days to submit a verified petition to challenge the IMR determination.  Now, of interest here is that the WCAB acknowledged that a failure to verify a petition is not automatic cause for dismissal, so long as the submitting party cures the defect within a reasonable amount of time after it is pointed out.

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Furthermore, as this is all relatively new, some slack has been cut, especially considering the ever-present interest of deciding cases on their merits rather than on legal technicalities.

If the WCAB is going to allow the party to cure this defect on a regular basis, then perhaps the workers’ compensation community needs to approach this in a new way.  Instead of allowing an unverified petition to be dismissed, perhaps the parties should immediately point out the defect in writing as soon as the petition (or answer) is received.

That way, should this pointed-out defect be ignores, or of procrastination should get the better of your opponent, you can point the fact out to the reviewing Judge, who will then have a basis to dismiss the unverified petition.

Just a thought, dear readers, just a thought.

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4050 Exams – Besides the Scalple, Is There a Point?

August 20th, 2014 No comments

How would you like to send your injured worker to a physician of your choice for a thorough examination?

doctor glove meme

Labor Code section 4050 requires the applicant to submit to evaluations by a physician of defendant’s choice “at reasonable intervals” and at defendant’s expense.   However, are these reports of any use?

First off, let’s talk about the good.  Section 4050 allows you to get an injured worker before a physician you trust, and get a thorough evaluation going.  What’s more, it’s an opportunity for you to have your own expert witness prep your attorney for the cross examination of a QME or AME that might decide to get creative with his or her own report.  Although we defense attorneys possess “Juris Doctorate” degrees, we typically welcome all the help we can get with the medical mumbo-jumbo.

In fact, in the panel case of Lopez v. Target Corporation, from way back in 2012 (you remember 2012, don’t you? The year before SB-863 took effect in full…) held that the defense is entitled to compel applicant’s 4050 evaluation specifically so that the defense expert can assist in the preparation of the evaluating physician’s cross-examination.

Here’s another fun fact: if you suspect your injured worker of lying, a 4050 evaluation may provide another opportunity for him or her to get caught up in his own web, especially when combined with some well-placed sub rosa.  And while the WCAB may not be interested in reading a report (or viewing a video-taped evaluation) which comes from a 4050 exam, the local law enforcement folks should have no such reservations.

Additionally, section 4053 provides that “[s]o long as the employee, after written request of the employer, fails or refuses to submit to such examination or in any way obstructs it, his right to begin or maintain any proceeding for the collection of compensation shall be suspended.”  Your humble blogger doesn’t need to tell you the benefits of a missed appointment.

And, on top of everything else, this is a guaranteed spot for your sub rosa guys to meet the injured worker and follow him or her around.  Wondering where he’s working? Wondering what she’s doing with her spare time?  Now you’ll know where and when the injured worker will be for your hounds to pick up the scent.

Now, let’s talk the bad.

California Code of Regulations section 35(e) purports to limit the reports that can be sent to a PQME, namely prohibiting “any evaluation or consulting report written by any physician other than a treating physician, the primary treating physician or secondary physician, or an evaluator through the medical-legal process in Labor Code sections 4060 through 4062, that addresses permanent impairment, permanent disability or apportionment under California workers’ compensation laws, unless that physician’s report has first been ruled admissible by a Workers’ Compensation Administrative Law Judge.”

In Marciano v. Ameriflight, Inc., a 2013 panel case, the WCJ ordered that a 4050 report shall not be provided to a QME because section 35 is the authority on what documents can be sent to a PQME,  citing § 35(e).  The WCAB adopted and incorporated the WCJ’s report.

But, don’t get discouraged.  35(e) provides that the WCJ can still rule on admissibility, and if the report itself merits it, perhaps just such a ruling could be obtained (hope springs eternal).

What do you say, dear readers, have you had any luck with 4050 exams?

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Claim of Post-Robbery Psyche Injury Alleged Fake

August 18th, 2014 No comments

Alright, dear readers, we have a new champion for the crown of the most ridiculous workers’ compensation claim.

As you well know, each claim is judged by its own penchant for insanity, absurdity, and even audacity, or as might be heard around your humble blogger’s household, Chutzpah!

Previously, this blog observed with wide-eyed amazement some of the claims made against employers and insurers in California, including demands for industrial fertility treatments, an applicant marrying his wife to be able to invoke spousal privilege against her testifying, and even claims of disability while competing in Mixed Martial Arts competitions.

Well, here’s your humble blogger’s new champion if, of course, all charges are proved beyond a reasonable doubt: Aurora Barrera.  Ms. Barrera was apparently employed at a bank and suffered psychological injuries when she was held hostage by two men, forced to wear a bomb, and told to go into a bank and rob it.  She received workers compensation benefits of about $35,573 and medical benefits as well.

Now, calm down, dear reader, I know what you’re thinking: “Not only is this poor woman traumatized, but now my humble blogger is publicly ridiculing her on his fantastic blog that everyone should read.  I demand a refund!”

It’s fake, dear reader, it’s all fake! Not only did she conspire with the bank-robbers, but she knew the whole time it was a fake bomb.  SHE IS A BANK ROBBER!

And, not content with merely robbing the bank, she also elected to rob the workers’ compensation system by claiming a psychiatric injury as a result of the crime she herself committed.

Picture, if you will, John Smith, convicted by a jury of his peers for murdering his parents, and when asked for reasons that he should receive leniency, he, weeping, tells the Judge, “But your honor, I’m an orphan!”

Congratulations to the fraudster on the new title!  Every time a workers’ compensation fraudster gets convicted, your humble blogger cheers… you can (wait for it…) bank on it!

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She’s Beauty and She’s Grace, She’s Fraudster in First Place…

August 15th, 2014 No comments

Many beauty pageants include a talent section, and the 2014 Miss Toyota Long Beach Grand Prix contest is no different.  What special talent is making the news in this corner of the workers’ compensation world – it isn’t handstands; it isn’t even finding “the Iraq” on a map.

This time, it was committing insurance fraud!

Shawna Lynn Palmer stands accused of engaging in felony insurance fraud, after she was seen participating in beauty pageants, despite claiming that she could not wear shoes or put weight on her foot because of her toe.  The videos show her walking in high heels, and apparently there is documentation of her attending treatment visits and being issued crutches!

Well, according to deputy insurance commissioner Byron Tucker, social media played a role in gathering evidence in this case.

So, how about you, dear readers, are you checking up on your applicants through social media?  Are you Tweeting and Facebooking and the such?

Have a good weekend, folks!

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So… Parties CAN Agree to Submit Treatment Questions to AMEs?

August 13th, 2014 No comments

Your humble blogger previously opined that, despite Labor Code section 4062.2(f), which holds that “[t]he parties may agree to an agreed medical evaluator at any time, except as to issues subject to the independent medical review process established pursuant to Section 4610.5” the parties actually could enforce an agreement to submit medical treatment questions to an AME rather than to UR and IMR.

Well, it looks like the WCAB might take the same stance, as expressed in the panel decision in Bertrand v. County of Orange.  Applicant resolved her claim back in 2004, with a stipulation to submit future medical treatment disputes to the AME.  Well, fast forward roughly ten years, and defendant is claiming that all treatment disputes must go to Utilization Review and Independent Medical Review.

The WCJ held the agreement binding, and the defense sought reconsideration.  Treating the petition as one for removal, the WCAB held that “the new IMR process for reviewing a UR denial of medical treatment may be waived by the parties’ stipulation to bypass statutory review in favor of submitting their disputes to the AME.  The recent change to IMR as the method of review of medical treatment disputes, as provided in Labor Code section 4610.6, does not supersedes the parties’ stipulation…”

Now, it’s pretty hard to square that with the Labor Code: “the parties may agree to an [AME] at any time, except as to issues subject to [IMR]” on one hand, and “the new IMR process for reviewing a UR denial of medical treatment may be waived by the parties’ stipulation to bypass statutory review in favor of submitting their disputes to the AME.”

Let’s take this a step further – if the WCAB is saying that the parties may waive various statutory protections and resolve disputes by agreement, is there any limit on what benefits the parties can waive?

This is an issue that needs some serious, binding authority, but absent a petition for review by the County of Orange, we won’t find it here.

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Thousands for Billables, But Not $133.32 in Tribute!

August 11th, 2014 1 comment

Would you go to trial over $121?  The recent writ denied case of Martinelli v. Monterey County Superior Court, seemed to answer the question in the affirmative.

Ok, so here’s the deal: applicant court clerk sustained an admitted industrial injury which was resolved by way of C&R in the amount of $10,000, $1,500 of which was to go to the applicant’s attorney.

The C&R was approved on December 6, 2012, and a check was mailed on December 11, 2012.  Apparently, applicant did not receive the check, so a second check was issued on January 13, 2013.

Applicant claimed a right to the interest accrued during that period, while defendant maintained the position that it had discharged its duty by mailing the first check, and interest was not its responsibility.

The amount of money claimed? $121.20.  Oh, and applicant wanted a 10% penalty for the delay, to be paid in the amount of $12.12.

How much time does a person have to have on his hands that he’s willing to pursue $133.32 all the way to trial, reconsideration, and even review by the Court of Appeal?  Now, I’ve heard of going up on reconsideration over 3 cents, so perhaps this is not the smallest amount of controversy out there, but… really?

The C&R included a provision, as most do, that no interest would be owed if payment was made within 30 days of the C&R being approved, but the WCAB (and the WCJ) held that payment was not made within 30 days, because payment is made when the check is sent and paid.

Now, look, dear readers, your humble blogger can understand how the thousands upon thousands of my loyal readers (despite the humble showings of actual e-mail subscribers) might shake their heads at both the applicant and defendant for spending a single hour of billable time fighting this contention.

But, sadly, your humble blogger cannot agree.  While my ethical duties to give competent counsel might require me to advise simply paying the $133.32, as a blogger who has no ethical duties to anyone at this point, I can speak from the heart…

Rudyard Kipling wrote a wonderful poem once, called The Dane-Geld, in which “an armed and agile nation” invaded a neighbor and demand payment to leave.  And, of course, “It is always a temptation to a rich and lazy nation, to puff and look important and to say: though we know we should defeat you, we have not the time to meet you.  We will therefore pay you cash to go away.”

Kipling, wise man that he was, knew the result of paying tribute in lieu of defending one’s rights:  “[f]or the end of that game is oppression and shame, and the nation that plays it is lost.”

Now, again, when my clients are faced with paying a trifling sum or litigating the matter, my ethical duties require me to advise them on the economics of the matter: $X in billable hours is not worth fighting over, and possibly losing the additional $133.32.

On the other hand, I’m just the attorney, and defendants, especially the adjusters on the file, have a consideration other than saving a few dollars today: the applicant and the applicant’s attorney will quickly learn that they are free to make unreasonable claims, so long as they are a trifling sum, and thereby get extra money.  After all, how would you like to develop the reputation that you can easily be bullied into a few hundred dollars at every turn?

As for the lessons to learn from this case, perhaps we should all be putting even more supplemental language into our settlement documents?  Something about interest being waived on timely mailed but ultimately lost or misplaced payments?

What do you think, dear readers?  Does your reputation for resistance to baseless demands factor into the equation when weighing the cost of the defense?

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WCAB: No Need for Adjuster To Testify on UR Determination

August 8th, 2014 No comments

A common tactic used by often less-than-ethical applicants’ attorneys is to list the adjuster as a witness for each and every possible trial.  “What? You don’t want to buy my client a vacation home? Well, that’s bad faith! Bring your adjuster to testify as to why you guys are such jerks, why the sky is blue, and why my mommy never bought me that shiny red fire truck I always wanted.”

And don’t kid yourself – whatever nonsense they state at the mandatory settlement conference, they know exactly what they’re doing.  They know that the adjuster’s testimony will have no bearing on the case – they also know that adjusters are always swamped and have deadlines to meet, and that a day or two out of the office, depending how far away the office is, can be brutal for deadlines.  It’s about scorched Earth as it gets.

Recently, the WCAB had occasion to review this practice in the matter of Reis v. Silvas Oil Company, Inc.

At the Mandatory Settlement Conference, the WCJ granted applicant’s request to have the adjuster appear personally at an expedited hearing to be held in two weeks.  The issue at hand was a Utilization Review determination non-certifying a request for carpal tunnel surgery.

Defendant filed a petition for reconsideration, or, in the alternative, removal.  The claims adjuster did not appear at the expedited hearing, and while the matter was pending before the WCAB, the expedited hearing was held on the issue of authorization of carpal tunnel syndrome.

Now, the WCAB did something rather interesting here: in an opinion, filed July 1, 2014, it dismissed the petition for reconsideration, and granted the petition for removal.  Granting the petition for removal, the WCAB held that “substantial prejudice or irreparable harm will result if removal is not granted.”

The WCAB further noted that the expedited hearing was held despite Rule 10859 transfer of jurisdiction to the WCAB 15 days after the filing of a petition for reconsideration. Therefore, the WCJ’s decision was ordered vacated, with instructions to reset the matter for an expedited hearing, absent consent of the parties to submit it on the current record.

The reasoning here notes that there is nothing in the adjuster knowledge that would justify a trip from the insurance company’s office in Portland, Oregon, to Fresno, to testify regarding a utilization review determination.

But here’s the kicker – the WCAB is saying this matter is not appropriate for reconsideration, but had the defendant filed ONLY a petition for removal and not reconsideration, the WCJ would have continued to have jurisdiction over the matter, and the defendant would have been violating the WCJ’s order by failing to produce the adjuster-witness.

Play it out with me, dear readers: the defendant files for removal, the WCJ retains jurisdiction, the expedited hearing is held two weeks later, and the adjuster either has to appear, thereby suffering the very “substantial prejudice or irreparable harm” that the WCAB recognized in its opinion, or violate the WCJ’s Order.

To a large extent, it is only by filing for reconsideration and invoking the power of 10859 that the defense can avoid this tactic by applicants.

Although there has been some talk about sanctioning practitioners who improperly petition the WCAB for reconsideration when removal is the appropriate remedy, perhaps the WCAB is inclined to refrain from sanctions or reprimand when a petition for removal will prove no remedy because of the time-sensitive nature.

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WCAB: Suspended QMEs’ Opinions Not Inadmissible

August 4th, 2014 No comments

When you are blessed with a child’s way of thinking, you often realize that the packaging can be as fun as the toy.  Your humble blogger has, on more than one occasion, gone to great lengths to find, purchase, and assemble the perfect toy for his offspring, only to find said offspring more interested in the box.  Why couldn’t I have just bought a box instead?

Just so, dear readers, we must sometimes look at workers’ compensation with a child-like innocence, in part because trying to make sense of this system may lead to the filing of a psyche injury claim, which, of course, reveals the self-perpetuating nature of the comp system itself.

Take, for example, the case of McKinney v. United Parcel Service.  Applicant was in a car accident, resulting in the death of a motorcyclist and criminal charges, which were later dismissed.  He also faced termination of employment as a result of the collision.

The QME found that 40% of the resulting psychiatric injury was caused by the good-faith personnel action – the termination of employment.

Terminator

The WCJ originally found that this opinion was not substantial evidence and found a compensable psyche injury, but the WCAB reversed in response to defendant’s petition to compel.

For the first time on appeal, however, applicant claimed that the QME’s reports were inadmissible because, during the reporting period, he was on suspension as a QME.  The WCAB noted that this issue could have been, and should have been, discovered and raised at the trial level, rather than for the first time on appeal.  That being said, the WCAB noted that the only relevant statutory authority is Labor Code section 139.2(m), which provides that the QME’s report is made inadmissible if the QME has been suspended by the relevant licensing authority, or the California Medical Board (in this case).

QMEs can get suspended for lots of reasons – late reports, improper billing, ex parte communication.  The temporary or permanent inability to get listed on QME panels and be the subject of endless debate and pointless litigation by workers’ compensation lawyers hardly speaks to the admissibility of a QME’s opinions, whether expressed in a report or during a deposition.

Now, my faithful [e-mail] followers, what can we learn from this?  Before you get to the reconsideration stage, before you get to trial, before you even make a strike from the panel, you should fully and thoroughly investigate your panel choices.  I would even be willing to bet the shiniest penny of my shiny penny collection that most defense attorneys (your humble blogger included) keep a running list of notes on the QMEs they encounter and have researched, so you can probably ask your favorite attorney for his or her notes before making a strike.

And, if worst comes to worst, you can always bring up the reasons for discipline at the QME’s deposition, and take the validity of the QME’s opinions down a peg, even if you can’t get them dismissed altogether as inadmissible.

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Always Object to Venue Based on AA’s Office

August 1st, 2014 3 comments

Hello, my beloved readers!  As you sail off into your weekend, full of revelry and escape, I hope you will allow me to send you off with a thought.

As some of my first few readers will recall, the issue of venue has been touched upon a time or two by this blog.  Today, I want to tell you about my friend Jack.

Jack is a defense attorney, and comes from a long line of defense attorneys, particularly in workers’ compensation.  His cousin, Jill and he both do workers’ comp defense, one in southern California, the other in Northern, for the law firm of Whey, Cheatum, and Howe.

I was having a drink with Jack the other day, and he let me in on a little secret of his practice.

He says he ALWAYS tells his clients that they should object to venue based on the applicant’s attorney’s principal place of business.

You will recall, dear readers, that Labor Code section 5501.5 provides that an applicant must be filed in the county nearest to (1) the employee’s residence at the time of filing; (2) where the injury occurred; or (3) the county where the employee’s attorney maintains his or her principal place of business.

However, subsection (c) of the same provides that if venue is chosen based on the attorney’s place of business, then the employer can object within thirty days of receiving the notice of application.  In fact, the WCAB in Koine v. Fontana USD (1998 panel decision) held that there is no discretion on the part of the presiding Judge when faced with a timely venue objection under 5501.5(c).  If it’s within 30 days, with or without a showing a good cause, venue must be transferred to the nearest board to an applicant’s residence or injury location.

So, as Jack finished off his fourth Old Fashioned, he told me his family of defense attorneys routinely recommended to their clients to automatically object to venue based on the attorney’s address.

His reasoning was as follows:  odds are, the applicant lives close to where he or she got hurt (not always, but most times).  So if the attorney is in the same county as where the injury occurred or where the worker lives, venue would be selected based on one of those and no objection would be possible.

If, however, the injured worker resides somewhere in northern California, and the applicants’ attorney is one of those completely ethical ones from southern California (you know the ones, and, no, I won’t name them here), you’ve just severed the cord between the attorney and the client.

The southern California attorney is going to be on tilt trying to handle a northern California venue, and will have to rely on contract appearance attorneys for every hearing.  Soon enough, the profit margins will disappear… possibly leading the same unethical nature that allows this far-off attorney to hire steerers, runners, and cappers to bring him clients, to abandon his client as well…

Once this lecturer was completed, Jack cackled madly and ordered another drink, and I vowed to myself never to join him for happy hour again (I did not seek Jack genuinely “happy” even once during that hour, but that’s par for the course with a workers’ compensation defense attorney).  But it did get me thinking – should the defense always object to AA’s choice of venue?  Should there be a boilerplate objection the intake person at the adjusting agency should have?

After all, the county where in the applicant lives or where the injury occurred is going to be the most convenient for defense witnesses.  Additionally, the go-to attorney is probably closer to there than the applicant’s attorney’s nearest DA.

Additionally, why should the applicant be inconvenienced with unnecessary travel?

What do you think dear readers?  Is Jack crazy for always objecting to venue, or is your humble blogger crazy for having some doubts and reservations?

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No UR for MPN Physicians? WCDefenseCA Does Not Approve!

July 30th, 2014 No comments

It has come to your humble blogger’s most humble of attentions, that there is a case floating around the workers’ compensation world, Hogenson v. Volkswagen Credit, Inc. which advances the proposition that a defendant cannot submit an MPN doctor’s Request for Authorization to utilization review.

Now, as much as I would have liked let this go unnoticed, my uncle Boris’ sage advice always comes to mind at times like these: “BORIS SMASH!”

Mr. Hogenson was treating with an MPN physician for an admitted injury sustained in 2000.  The PTP had sent in a Request for Authorization (RFA – not to be confused with the RAF, which so bravely defendant England in World War II, as that collection of aces would have been hard for any defendant to resist)

Royal Air Force Meme

Utilization Review denied the request and applicant, as they all do now, set the matter for hearing.

The WCJ provided a history of the UR and MPN systems, and noted that UR was introduced to help control the cost of medical treatment, and then the MPN system was introduced to offer greater control.  In fact, the WCJ noted that “[a] defendant was not able to [assert] total control over the choice of Applicant’s treating physician.  A defendant controls what doctors are invited to participate in the MPN and the defendant may then oust the physician from the MPN.”

Citing section 9767.7(g), the WCJ further opined that the employer must allow recommended treatment to be obtained within the MPN.

The WCAB issued an opinion granting reconsideration in June of 2014 to study the issue, and it doesn’t look like there is an answer just yet from the WCAB.

If you have had no experience with the frustration and difficulty inherent in forming a statutorily acceptable MPN, then allow me to sing you the song of my people.

youre-entering-a-world-of-pain

The regulations require an MPN to have at least 3 primary treating physicians within 15 minutes and/or 30 miles of an injured worker’s home or residence.  The regulations also provide that the MPN must provide at least 3 specialists within 30 minutes or 60 miles of the same.  Applicant’s attorneys, on a regular basis, will argue that the specialty of pain medicine or chiropractic care is NOT a specialty, and so an MPN must have 3 pain management and 3 chiropractors within 15 miles of an applicant’s home or work.

Now, just try to find at least 3 physicians of every specialty, 15 miles from everywhere.  Just try to find 3 physicians that are competent, dedicated, don’t overcharge, don’t over prescribe, and also have enough space in their practice to accommodate injured workers that will, as often as not, lie to them about their symptoms or the circumstances of their injuries.

Try finding enough doctors willing to come to work every day and have applicants’ attorneys degrade and insult them for refusing to maim their clients with unnecessary surgery or drive them to a narcotics addiction all to maximize permanent disability.

Now tell me about how easy it is to form a working MPN and how much control the employer really has – forced into the impossible choice of having a porous and defenseless MPN or “stocking the pond” with more ducks than fish (get it? the quacks? ducks?) that you’d rather not have in there.

Utilization review is an absolutely necessary defense for employers to have for those times that the bad doctors get allowed onto the MPN out of desperation.

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