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California Supreme Court: No Dubon Review

April 3rd, 2015 No comments

Hello, dear readers!

So here we are – another week gone.  And, after being tricked intro drinking coffee with salt instead of sugar, after having your desk covered in post-it notes, and after being misled into buying workers’ compensation insurance for your pet dog, you’re finally ready for some good news.

Well, leave it to your humble blogger to bring you some!

So, from the looks of it, the California Supreme Court won’t be chiming in on Dubon, and the decision looks like it’s going to stand, at least for now.

As you will recall, Dubon, that en banc WCAB opinion which ultimately held that, unless UR is untimely, it HAS to go to IMR, is not the only case that challenges the absolute exclusivity of the UR-IMR procedure.  The case of Stevens v. WCAB is likewise working its way to the Court of Appeals’ decision desk, with Mr. Stevens seeking to establish that Workers’ Compensation Judges should have jurisdiction over the validity of UR and IMR.

Now, while we in the defense community might all dance in the streets at the idea that, for a bit longer, at least, there’s no adverse decision on the question of the validity of IMR, there’s a bit of frustration everywhere else.

Treating physicians are certainly upset that they can’t get authorization for all the treatment they would like to perform (and bill for).  And, of course, applicant attorneys are upset that they can’t get more and more treatment for their clients, whether for the sake of the treatment itself or just for the ability to drive up costs for defendants as a means of leveraging higher settlement amounts.

Now, as much as your humble blogger is a cold, heartless defense attorney, I can’t help but agree with some of the sentiments of the anti-IMR crowd.  It’s horrible when UR denies home modification on the basis that the UR reviewer would not have authorized a wheelchair in the first place.  It’s horrible when UR denies an MRI for the back because the knee has not been admitted as an injury (that’s not a typo dear readers, and no, I’m not making these ones up).  It’s horrible when UR refuses to authorize Scotch injections for a spiritually and morally crushed but physically health workers’ comp blogger (that one might actually be made up).

But, you know what else is (arguably equally) horrible?  The abuse employers and insurers receive in California’s workers’ compensation system.  Employers are forced to provide sleep number beds.  Employers are forced to provide treatment for non-industrial conditions just to make industrial treatment feasible.  Neither temporary disability nor medical treatment benefits are subject to apportionment.  We’ve seen insurers with just a few days of coverage be stuck with the entirety of a career-spanning CT.

At the moment, it looks like the only two possible scenarios are those in which one of the parties is left very unhappy – either employers are forced to provide treatment of questionable reasonableness and necessity, or employees are deprived of reasonable and necessary treatment on questionable grounds.  The legislature is clearly not content to leave decisions in the hands of the Administrative Law folks, and the Administrative Law folks aren’t happy leaving the decision in the hands where the legislature placed it.

We need another solution, and quick.  Your humble blogger’s ideas have been roundly rejected, including (1) have all jobs done by robots that are specifically programmed not to rebel against humanity; (2) tell all employees to stop getting injured at work; and (3) wrap all employees in thick layers of bubble-wrap prior to sending them out to do the day’s tasks.

Are you guys sure I can do welding in this?

Are you guys sure I can do welding in this?

What are your ideas?

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Absent Dubon, WCAB Can Only Grant New IMR Decision

September 3rd, 2014 2 comments

Hello, my beloved readers!  As you return from your Labor Day weekend, relaxed, refreshed, and ready to take the Workers’ Compensation system by storm, your humble blogger greets you with news of a recent panel decision REJECTING jurisdiction over IMR.

I’ll have you know, first and foremost, that after last week’s post discussing the statutory requirement that IMR appeals be verified, your humble blogger was beset by a mob of devoted readers demanding more posts addressing the IMR appeal process.  Phone calls were received, e-mails were read, and borderline threatening messages were communicated.  Well, who am I to say no to such passionate voices?

As you will recall, Dubon was an en banc opinion in which the WCAB ruled that applicants can use expedited hearings to challenge the validity of the UR process, and thereby escape IMR.  The test appeared to be whether the UR decision suffers from a material procedural defect that undermines the integrity of the UR decision.

In the case of Stevens v. Outspoken Enterprises, Inc., applicant sought to challenge the IMR denial of a treatment request rejected by the Utilization Review process.  However, for reasons not apparent from the panel opinion itself, it appears that no Dubon challenge was mounted (as the WCJ noted in her report: “there have been no allegations of material procedural defect or untimeliness in the UR decision”).  So, the WCAB was left with a challenge to the IMR decision based on (1) the fact that IMR is unconstitutional; and (2) the IMR determination is deficient and does not constitute substantial evidence regarding medical necessity.

The WCAB’s response was to tell applicant that he was shopping for a hotdog in a hardware store.

The WCAB has no authority to declare statutes unconstitutional or to overturn legislation.  Additionally, the legislature has allowed for a very narrow few reasons to overturn an IMR decision, and the exhaustive list of those reasons is provided in Labor Code section 4610.6(h):

  1. The administrative director acted without or in excess of the AD’s powers;
  2. The determination of the AD was procured by fraud;
  3. The IMR reviewer was subject to a material conflict of interest;
  4. The determination was the result of bias on the basis of a series of protected classes; or
  5. The determination was the result of a plainly erroneous express or implied finding of fact, provided the mistake of fact is a matter of ordinary knowledge based on the information submitted for review and not a matter that is subject to expert opinion.

And, here’s the best part: even if you succeed, at the end of the yellow brick road is what you’ve had all along: another IMR!  As goes the panel opinion: “the remedy provided for any successful appeal of an IMR pursuant to section 4610.6(h) is limited by section 4610.6(i) to the conduct of another IMR” and something tells your humble blogger that more IMR is not what any applicant is looking for.

So, why didn’t the applicant go full Dubon on this case?

Never Go Full Dubon

Your humble blogger can only speculate.  In speaking with applicant’s attorneys here and there, it appears that the general policy is to always file an expedited hearing on a UR denial and make the defendant waste funds on its defense.  The familiar logic of scorched Earth appears to be that, eventually, defendants will prefer to pay for the medical treatment rather than to pay to defend it, and that today’s bottom line will trump tomorrow’s encouragement of frivolous claims.

My regular readers know how I feel about paying the Dane’s Geld, and so I can’t help but applaud the defendant in this case for its staunch defense of the IMR ruling.  Well done!

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Is Error re: Accepted Status of Injury Fatal Under Dubon?

June 6th, 2014 No comments

While IMR awaits its fate with the possibility of a new holding in the Dubon case, the show must go on, and UR/IMR rulings are still made in lovely world of Workers’ Compensation.

A recent panel decision ordered a remand of the WCJ’s findings on whether the UR decision was defective to the level contemplated by Dubon itself.

Applicant sought treatment for his left knee, and the UR decision denied it.  However, in the UR report itself, reference is made to the left knee being a denied claim, when it is actually admitted.  The WCJ held that the UR decision must be taken through the IMR Process, but subsequent to that determination, the WCAB issued its ruling in Dubon.

As my beloved readers will recall, the Dubon decision held that a UR determination need not go through IMR if it untimely or suffers from a material procedural defect that undermines the integrity of the UR decision.  However, Dubon also held that, even if the UR report proves invalid, the applicant still bears the burden of proving that the treatment is necessary, opening the door for the defense to copy-paste the UR reasoning into its trial brief.

That being said, UR is not there to determine the compensability of a claim – that’s what the Medical Unit and AMEs are for.  So, if the UR physician mistakenly writes that the left knee claim is denied, rather than accepted, but then provides the sound medical reasoning necessary to deny authorization for the treatment, is that a material procedural defect as per Dubon?

What if the UR physician had noted that “medical records reflect that applicant’s favorite color if blue?”  Well, applicant, aflame with righteous indignation, could pound the witness stand and scream from the top of his lungs that his favorite color is green.  He could bring in witnesses, including childhood friends, that would confirm that as long as they knew applicant, his favorite color has always been green.  In fact, applicant could conceivably wear a green shirt and a green tie to the trial, such that the WCJ, on pain of public flogging, could make no finding other than applicant’s favorite color is green.  What difference does it make?

The medical reasoning is still there, and has nothing to do with whether the injury is accepted, or denied; compensable or not.

Now, on the other hand (and as a fair and impartial defense hack, your humble blogger must always provide the other hand), the weakness of the UR report doesn’t have to be just a material procedural defect, but rather a material procedural defect that undermines the integrity of the UR decision.  Accordingly such a flaw as not recognizing that a particular injury is accepted, impeaches the “integrity of the UR decision.”

Well, we don’t have an answer just yet, but it would be interesting if a mistake of a logically irrelevant fact were sufficient to jettison the IMR procedure in a particular case.  Of course, if the stars align on Dubon, it may become a moot point.  Here’s hoping!

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Don’t Settle Those Dubon Issues Just Yet… Cavalry (May Be) en Route

May 28th, 2014 No comments

Put down that pen! Step off that ledge! Do not cave in on that medical treatment dispute!

From the looks of it, the Dubon matter may have a new twist in the works – the WCAB recently granted Reconsideration to consider the issues raised by SCIF, which means there may be a new opinion coming down soon that will close the lid on the Pandora’s Box of issues opened by the original opinion.

Before we get too excited, we should all note that “the Appeals Board’s February 27, 2014 en banc opinion in Dubon shall remain in effect and binding.”

On the other hand, there are more than a few reasons to be optimistic.  For starters,  After Dubon, a new commissioner joined the panel – Katherine Zalewski.  Commissioner Zalewski brings particularly persuasive expertise on this issue because she was instrumental in the drafting of SB-863, which brought the embattled IMR process to California.  As someone who was in the proverbial kitchen while the even-more proverbial meal was being prepared, she can speak with considerable authority as to the intent of the Legislature in drafting and passing SB-863 and IMR with it.

Additionally, whereas the original Dubon opinion had the benefit of the parties’ respective arguments, since Dubon, the internet, the lecture circuits, and even the smokey rooms where benefits are poker chips and all the big wigs of the big firms play for keeps, have been filled with opinions, analysis, and arguments for and against the reasoning behind allowing the WCAB to decide whether or not a particular medical dispute is confined to Independent Medical Review.


Now, in all likelihood, if you’re an adjuster with an attorney on the file, you’re getting an e-mail after every UR decision with a “Dubon analysis” which provides not only confirmation of the timeliness of your UR report, but its validity for other weak points, which I will decline to list here in appreciation for the three applicants’ attorneys that read this blog (But your honor, the humble blogger said the UR report was defective because…)

That being said, a WCAB en banc opinion returning all medical disputes to UR and IMR will not only eliminate the need for this analysis (and the associated billables), but also the resulting litigation – after all, an applicant’s attorney playing the scorched Earth campaign is more than happy to inflict a needless IMR bill on the defense while also filing for an expedited hearing to perform a Dubon challenge.

So, here’s hoping for a favorable result from the WCAB soon.  In the meantime, don’t cave on the medical treatment awards, even in the face of some UR defect or another: in a best-case scenario, help is on the way, and in a worst-case scenario… well… just look around, because this is it.




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UR Invalid For Addressing Need for Scooter Instead of Scooter Repair RFA

February 8th, 2016 No comments

Hello, dear readers!  Another weekend is gone, another week is starting, and here we are: your humble blogger rampaging against good sense and common decency into his blog posts, and you, the reader, watching this train wreck and helpless to look away.  Let’s be honest folks… it’s either reading this blog post or going back to do real work – the choice is clear.

For those of you still reading, have you seen the Rodolfo Arroyo case yet?  It’s a recent panel decision which seeks to, once again, test the limits of the Dubon II (en banc) decisions giving sacrosanct status to UR determinations.

Applicant sustained an admitted injury and received a motorized scooter which broke down after about five years of use.  His treating physician requested either repair or replacement of the scooter, and, when the issue was submitted to UR, the UR determination addressed whether or not a scooter was necessary, rather than whether the repair or replacement was necessary.  In upholding the UR determination, the WCJ reasoned that once the UR G-ds had spoken in a timely fashion, the will of Olympus was not mortal men or women to dispute.

In granting applicant’s petition for removal, the commissioners the WCAB reasoned that “the UR considered whether provision of a scooter is medically supported, but that is not the issue raised by the request for authorization.”  Although it may be appropriate to stop treatment at a certain point, or, rather, it may be appropriate not to authorized further treatment of a kind that medically reasonable and necessary at one point, the issue here is that UR answered a question that no one asked.

Now, if you will recall, dear readers, there was a similar case to this one reported earlier on this blog.  In the Takafua case the PTP requested assistive devices, like handrails in the shower, and IMR, in upholding the UR denial, responded by denying authorization for in-home care.  In that case, the WCJ held that applicant was entitled to a new IMR decision, which appears to be the only remedy available for a defective IMR.

Now, as reasonable as the commissioners’ ruling is, in theory, here’s a thought to consider:  if UR is tasked with deciding whether repairs or replacement of an already-provided scooter are medically necessary and reasonable, the UR physician is really being asked whether the use of a motorized scooter is necessary NOW.  Whether or not it was necessary 5 years ago, the question remains of whether or not the injured worker still needs it.  Only after answering the first question, in the affirmative, can the UR physician address the second.

If the UR physician is saying “you don’t need repairs or replacement because you don’t need a scooter in the first place” then the denial should hold.

Now, here’s another thought –  what the commissioners DID NOT rule on was whether or not the repair or replacement of the scooter was medically necessary, but only that the WCAB has jurisdiction to review the question on the merits.

Defendant’s exhibit 1 is going to be the UR report, in all likelihood: the reasons militating against a scooter are the reasons militating against repair or replacement.

What do you think, dear readers?  Should this one have been confined to IMR?

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Be Careful How and Why You Defer UR…

August 3rd, 2015 No comments

Happy Monday, dear readers!

I bring to you the case of Millette v. 81 Grand holdings, Inc., a recent writ-denied case having to do with deferral of utilization review.  Applicant sustained an injury for which no denial was issued within 90 days of it being reported, and defendant provided neck surgery.  Following the surgery, various treating physicians requested several forms of treatment, all of which were deferred by the defense because “causation is in dispute.”

Applicant filed for an expedited hearing, and the WCJ awarded treatment, reasoning that California Code of Regulations section 9792.9.1(b) requires a “clear, concise, and appropriate explanation of the reason for the claims administrator’s dispute of liability for either the injury, claimed body part or parts, or the recommended treatment.”  The WCJ found that “causation is in dispute” did not satisfy the requirements of the regulation.

On reconsideration, defendant argued that this order would bypass utilization review, but the WCJ, in his report and recommendation, relied on subsection (D) of 9792.9.1, which provides that the injured employee may use “the dispute resolution process of the [WCAB].”

The WCAB denied reconsideration and the Court of Appeal denied review.

Of interest in this case is that defendant was put in a position where the injury was presumably compensable, as per Labor Code 5402(b) (“[i]f liability is not rejected within 90 days after the date the claim form is filed under Section 5401, the injury shall be presumed compensable under this division.”)  So, what is the defense basis for disputing causation?

Well, the injury itself was a trip-and-fall, resulting in injury to the neck and face.  But the RFAs were for treatment home care, a Foley catheter, a power wheel chair, and a urological consult.  If defendant is aware of pre-existing medical conditions that might create the need for this additional treatment, conceivably there would be valid grounds for whether the treatment is necessary specifically for the industrial injury.

But, it looks like a more concise explanation would be necessary to defer UR.  Perhaps further discovery would also be necessary prior to litigating the issue – defendants have the resources of a 4050 exam which can be used to cross-examine the treating physicians and even to guide and inform the cross-examination of a PQME on the issue of causation (your humble blogger will go toe-to-toe with anyone on Star Wars trivia, but might need some professional guidance when it comes to whether a neck surgery might cause urinary problems).

Defendants can subpoena prior treatment reports to show the need for these treatments existed prior to the industrial injury – perhaps an applicant’s private insurance records will include a denied request for such treatment predating the DOI?

In any case, dear readers, perhaps UR is a safe route to do as well?  After all, while section 9792.9.1 allows the disputes to be resolved through the WCAB, Dubon II allows no such disturbance from a timely and properly communicated UR report.  It might be worth the vendor fee and IMR bill.

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Split WCAB: Untimely IMR Invalid

June 26th, 2015 No comments

Hello, dear readers!

Friday is upon us – the weekend looms just around the corner, and, once more, the resources of the WCAB are deployed to address disputes over UR and IMR.

Today I report to you the case of Saunders v. Loma Linda University Medical Group.  Therein, the defendant declined to authorize medical treatment in the form of pool therapy (think swimming, not billiards).  UR timely denied the request for authorization, but the injured worker challenged the IMR decision, arguing that, under Labor Code section 4610.6(d), the IMR decision is invalid.

Section 4610.6(d) provides that IMR must be completed “within 30 days of the receipt of the request for review and supporting documentation…” In the Saunders case, the IMR decision reflects a receipt date of January 29, 2014, and a determination date of June 26, 2014.

The commissioners held that as section 4610.6(d) provides for a 30-day response by the IMR reviewers, and section 9792.10.5(a)(1) provides 15 days for the administrator to provide additional information, resulting in a 45-day-window for IMR to provide a response.  In this case, as IMR’s turn-around time was closer to five months, thereby returning jurisdiction to the WCJ to determine, on the merits of the situation, whether the medical treatment should be allowed.

Citing Dubon II, the commissioners ultimately held that “[a]s with an untimely UR, the issue of timeliness of an IMR determination is a legal dispute that is within the jurisdiction of the WCAB.”  The majority ultimately ordered the matter returned to the WCJ for a determination on whether (1) IMR was timely performed; and (2) if not, whether applicant should be entitled to treatment.

Commissioner Zalewski, however, dissented.  Taking the position that the legislature intended for IMR and UR to be the sole venue for resolution of medical treatment disputes, commissioners Zalewski would have let the IMR decision stand.  Labor Code section 4610.6 provides the grounds upon which an IMR decision can be challenged, and untimeliness is not one of the reasons listed. Furthermore, commissioner Zalewski would have relied on Labor Code section 4610.6(i) “[i]n no event shall a workers’ compensation administrative law judge, the appeals board, or any higher court make a determination of medical necessity contrary to the determination of the independent medical review organization.”

Unsurprisingly, your humble blogger agrees with Commissioner Zalewski’s position: the purpose of SB-863 in this regard was to confine, as much as possible, medical treatment determinations to medical professionals – M.D.s and not J.D.s.

Furthermore, unlike with an untimely UR, a physician (the underlying UR physician) has already reviewed the request for authorization and determined to deny authorization in full or in part.

In a case such as this, if the WCJ or the WCAB decides that IMR is untimely, and the WCAB has jurisdiction to review and decide the issue of medical necessity, it would have to overturn the opinions of a doctor – the exact result the legislature sought to avoid by confining these issues to the UR – IMR process.

Now, your humble blogger gets it – while IMR proverbially fiddles, the injured worker proverbially burns.  But, as discussed above, this is an appeal from a prior timely determination – UR.

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WCJ: RFA For Previously Authorized Ongoing Home Care Not Subject to UR

May 27th, 2015 No comments

Hello, dear readers!  Your humble blogger returns, eager to share with you the wisdom of this pivotal area of law that determines so much in the lives of so many… you guessed it! WORKERS COMP!

So, have you heard of the Miramontes case?  Applicant sustained an admitted industrial injury that left him effectively paralyzed from the waist down.  His treating physician had recommended home care services to help him perform basic activities of daily living, including getting in and out of bed, getting around, etc.  Defendant had been dutifully providing (or paying for) home care services for seven years until around October of 2013, when defendant wrote to the treating physician to have him submit additional requests for ongoing home care authorization.

When the good doctor did not provide a prompt response, even after repeated follow-up by defendant, in March the faucet was turned tightly clockwise (for those of us who grew up with electronic watches, that means they turned the water off).  Naturally, applicant had a problem with this.  In response to the facsimile reflecting this cut-off, applicant faxed back a prescription from the treating physician to provide home care “full time.”

Defendant then submitted the prescription to UR, and UR promptly denied any home care at all.

The matter proceeded to trial, and the WCJ ruled that defendant must continue to provide home health care (at $560 per week).

Defendant sought reconsideration, which was denied without comment by the WCAB.  A writ of review was likewise denied by the Court of Appeal.  In his report and recommendation, the WCJ noted “this judge believes that defendant’s unilateral stoppage of medical treatment to force a new prescription for any medical service that an injured worker has needed for seven years is disingenuous and should not be allowed by the [WCAB].”

Now, let your humble blogger begin by saying this issue is not as clear-cut as a “true-believer” from either the applicant or defense bar might claim.  I get the defense position completely – we wanted a prescription to make sure that the services are still necessary; and, once we got a prescription, we performed Utilization Review.  Additionally, IF it was wrong to threaten to cut off home healthcare after the treating physician failed to respond from October to March, that has little to do with the fact that a prescription was reviewed and failed the UR test.

We saw, for example, the case of McCool v. Monterey Bay where defendant’s UR of pain medication which applicant had been receiving regularly, prompted the WCAB to note that such adherence to the strict letter of the law with respect to UR might warrant an audit, especially when the result is putting an injured worker’s life in peril by suddenly cutting off medication.

In this case, applicant had been using (and, one could say, relying) on home health care for seven years.  Without any apparent documentation in change in circumstances, defendant obtained a prescription for the services, and UR then non-certified the treatment.

On the other hand, look at the position the WCJ took in this case: He did not order the defendant to provide medical treatment because UR was untimely.  Instead, he looked at the merits of this particular case, and, in these circumstances, found that it was appropriate for the treatment (home healthcare) to continue.

This standard or review is proposed in Senate Bill 563 – if there’s no change in circumstances, the defendant is prevented from re-submitting previously authorized treatment to UR.

But, at this time, that’s NOT the law.  Dubon II very clearly spells out that the WCAB has no jurisdiction to determine the validity of a UR determination EXCEPT as to whether it was timely.  In fact, your humble blogger has seen a string of cases recently which adhere to Dubon’s holding very closely, and seem to turn a blind eye to the reasoning used by UR.

So what’s different about this one?  Why did the WCAB decline to comment or provide analysis?  Why was this new exception (previously authorized ongoing care) not adopted or rejected by the Board?

It is well above your humble blogger’s pay grade to find the answer (your generous subscription fees are appreciated, nonetheless), but I suspect it has to do with the facts of this particular case – a treatment that is clearly necessary and, probably, vital on the one hand, and a result on the other hand that is, in your humble blogger’s estimation, procedurally correct.

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WCAB Split Panel: Get that IW a Sleep Number Bed!

March 23rd, 2015 2 comments

Your humble blogger greets you this fine Monday morning feeling refreshed and well rested.  How, you might ask? Well, I got the same number of hours as always.  My dreams were haunted with benefits being provided in excessive of those required by law.  So how was I so well rested when my alarm went off?

I had a sleep number bed!

Now, you might be thinking “Greg’s just a humble blogger and a handsome defense attorney, how can he afford a sleep number bed?  Did he become an applicant’s attorney and get rich overnight?”  No, dear readers, not at all.  Through the magic of workers’ compensation, I was able to get a sleep number bed for free!

Just kidding, dear readers, but I do bring you the case of Carnes v. Auto Zone, wherein the applicant’s primary treating physician submitted a request for authorization of a sleep number bed, base, and pad, ($5,325.86 in costs) and the UR deadline was not met.

dr house thumbs up

Applicant brought the matter before the WCAB, and, relying on Dubon’s holdings (recap: WCAB can only review UR determinations if UR deadlines are not met; in those cases, requests for authorization must still meet “reasonable medical necessity” threshold).

At the expedited hearing, the parties stipulated that defendant’s UR regarding the request for authorization for a Sleep Number bed was not timely, but defendant maintained that the requested “treatment” was not medically necessary.  The WCJ ultimately found that the sleep number bed was medically necessary, and ordered Defendant to provide it.  Defendant decided to sleep on it (get it?) and then sought reconsideration.

The Treating Physician, a back surgeon, noted that applicant’s current mattress was 15 years old and he needed a new one for his post-surgical recovery.

Now, we don’t get much from the WCAB opinion, other than the fact that two of the three commissioners adopted and incorporated the WCJ’s reasoning.  But, as your humble blogger has referred to one or two times in this blog, his old law school professor used to say “if you want to know what really happened, read the dissent [too].”

Your humble blogger’s favorite part of the dissent?  Footnote 3: “It may be that applicant has an old mattress and he would sleep better with a new mattress, just as other things are undoubtedly important to his recovery, like food, clothing and housing.   However, that does not make defendant liable to provide all of those things as reasonable medical treatment.”

Your humble blogger agrees with the dissent wholeheartedly:  It could be that a dog would help applicant recover because it would cheer him up.  It could be that a bank account with $1,000,000 waiting for applicant to claim it would motivate him to regain his good health.  It could be that daily sacrifices to the ancient pagan deity Grinbergia Bloggus would increase the chance of the surgery’s success.  None of that is in the record.

Now, the logical conclusion that applicant needs a new mattress is there without being developed.  After all, the WCAB has previously required the construction of wheel-chair ramps on an applicant’s vacation homeThe WCAB has previously shifted to defendants the cost of an applicant exceeding work restrictions because his second-floor apartment didn’t have an elevator.  So, it’s not entirely out of line for the WCAB to require appropriate medical equipment at home, such as replacing an applicant’s 15-year-old mattress with one that’s newer and better.

In fact, it’s entirely possible that the treating physician has real, sound, un-rebuttable evidence that a sleep number bed is specifically necessary for post-surgical recovery, as opposed to just a decent new mattress that will stay firm for 2 years instead of being guaranteed for 10.

As the dissent very effectively points out, none of that is in the record.

Now, if you’ll excuse me, I’m going to sell my doctor on the fact that a cruise to Alaska is medically necessary for my industrial paper cut.  Wish me luck…

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WCAB: Again, UR Decision Must be Faxed or Called In to PTP w/in 24 Hours

January 21st, 2015 No comments

As will every victory for the employers and insurers, little by little, the gains are chipped away.  So too for the ground gained in Dubon, whereby the WCAB held, en banc, that just about every UR dispute, save timeliness, goes to IMR, where a secret ritual is held and, after invoking the spirit of the medical treatment deity “Medi-Nessisitus,” a ruling is ultimately rendered.

So, your humble blogger now brings you the case of Shanley v. Henry Mayo Newhall Memorial Hospital, a panel decision in which the WCAB held that for a UR report to be timely, as discussed in the Bodam case, all time requirements must be complied with, including being communicated in a timely fashion, rather than just a decision being reached.

In Shanley, both UR decisions were reached within five business days, and the decisions were mailed on the same day that the decision was reached to applicant’s counsel, applicant, and the physician who submitted the request for authorization.

However, the WCAB concluded that there was insufficient evidence that defendant had communicated the denial of authorization by telephone within 24 hours of reaching the decision, even though the UR report reflected that a peer-to-peer had been attempted with the treating physician and a message was left.

Citing Labor Code section 4610(g)(3)(A) (“[d]ecisions to approve, modify, delay, or deny requests by physicians for authorization prior to, or concurrent with, the provision of medical treatment services to employees shall be communicated to the requesting physician within 24 hours of the decision … [d]ecisions resulting in modification, delay, or denial of all or part of the requested health care service shall be communicated to physicians initially by telephone or facsimile, and to the physician and employee in writing within 24 hours for concurrent review, or within two business days of the decision for prospective review, as prescribed by the administrative director” and California Code of Regulations section 9792.9(b)(4) (“[d]ecisions to modify, delay or deny a physician’s request for authorization prior to, or concurrent with the provision of medical services to the injured worker shall be communicated to the requesting physician initially by telephone or facsimile” the WCAB concluded that defendant had failed to establish that the phone call to the treating physician by the UR which appears to have been scheduled as part of a peer-to-peer review, communicated the result of the UR determination.

The panel decision noted that, without an explanation as to the content of the message that was left with the treating physician, there was no basis upon which to conclude that the message communicated the denial of authorization.

The issue of medical necessity was ordered returned to the trial level.

So, dear readers, do you think it’s time for the UR vendors to start preparing a declaration under penalty of perjury that a phone-call or facsimile followed every UR decision?  Or, perhaps, UR physicians should start using the same automated service used by dentists and treating physicians to remind us of our appointments?

Because UR is typically a pretty rushed affair, and timeliness appears to be the prevailing challenge against IMR (other than constitutional grounds), perhaps we’ll see more of this potential weakness exploited by applicants in the near future, and proactive steps should be taken to nip this in the bud.

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