WCDefenseCA

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.

What are your ideas?

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?

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!

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!

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.

 

 

 

I know that not everyone is a fan of Monday mornings, my dear readers, so your humble blogger is happy to take the edge off with a relatively positive result from the WCAB.

One of the great gains made by the defense community as part of SB-863 was the implementation of IMR.  With review of UR determinations taken away from the WC system, and vested instead with Independent Medical Review, we saw UR determinations upheld with significant regularity.  Additionally, the costs involved have shifted to an administrative fee for a review, rather than the previous litigation costs of expedited hearings and appeals.

But, of course, the WCAB can still overrule a UR denial of requested medical treatment when the UR determination is not timely.  This explains why, in the weeks following the WCAB’s en banc determination in the case of Dubon, calendar sales skyrocketed all across California.

If your UR report is timely and otherwise valid, the odds are very high that it will be upheld by IMR.  If your UR report is NOT timely, your defense attorney has to take time out of his or her precious QME panel validity litigation to go to an expedited on whether the UR decision should stand on its merits.

So what’s the problem?  Well, much like the devil, the problem lies in the details.  California Labor Code section 4610 provides that “prospective or concurrent decisions shall be made in a timely fashion … not to exceed five working days from the receipt of a request for authorization for medical treatment…”  So, dear readers, pray tell… what is a working day?  Are Saturdays and Sundays working days?  Or, perhaps working days are any days except state Holidays? Shall we cite Genesis 2:2 in our pleadings?

That was the issue in the case of Puni Pa’u v. Department of Forestry.  Therein, applicant sought reconsideration of a WCJ’s finding that defendant’s UR determination to deny an RFA was timely.  Applicant contended that Saturday was a working day as contemplated by Labor Code section 4610.

The WCAB panel held that “although Saturday is a business day under Civil Code section 9, it is not a working day under Labor Code section 4610, because Labor Code section 4610 does not incorporate the definition of business day found in Civil Code section 9.”

Furthermore, the WCAB held that Code of Civil Procedure section 12a provides, that if the last day to perform any act falls on a Saturday or Sunday, that deadline is extended to the following Monday.

So… great news, right?  Although not binding authority, this certainly closes out another line of argument to snatch a UR determination out of the safety of IMR and into costly litigation.

I know at least 2 of my 12 readers are big Elton John fans, so let me end this blog post by reassuring you, once again, that since Saturdays don’t count towards the UR 5-day deadline…

Welcome back from the weekend, dear readers! Isn’t 2019 flying right by?  It feels like it’s been 2 months since new years’ but it’s actually only been two weeks.  The cold will never stop, the sun will never come back, and in the back of your humble blogger’s mind plays that old song on repeat: “hello darkness my old friend… why are you here it’s 4 p.m. …?”

Anywho, to reward you for your loyalty in readership and discerning taste in subscription (I know that not just anyone is allowed to contaminate your e-mail inbox), I am going to tell you a little workers’ compensation secret.  If a defendant is providing a certain type of medical treatment, it is not allowed to stop unless there’s a change in medical circumstances.  That’s right! Look through the Labor Code and you won’t find it; search through the regs but it isn’t there!  That’s because this secret is just a figment of some applicant attorneys’ imaginations.  It is a myth, a fantasy, not unlike Keyser Soze, which is why it’s such a well-kept secret, of course.  (To be fair, dear readers, there is one WCJ’s ruling and a no-comment WCAB approval that supports this conclusion, but this is non-binding and has no regulatory or statutory authority that your humble blogger can find; it would appear that the case discussed in this blog post directly conflicts with any guidance provided by the Miramontes result.)

With that in mind, I bring to your attention the relatively recent panel decision in the matter of Gonzalez v. First Presbyterian Church of Santa Barbara.  Therein, an applicant sustained an admitted injury and resolved her case via stipulated award with open future medical.  The case was reopened via petition but that’s not really related to the issue at hand.

Defendant was providing home health care for more than four years.  When applicant’s treating physician submitted yet another request for continued home health care, the request was forwarded to UR which issued a timely denial.  Applicant made a timely request for IMR but also challenged the validity of the UR denial at an expedited hearing.  Defendant raised the issue of jurisdiction based on the WCAB’s decision in Dubon II.

After the expedited hearing, the WCJ ruled that as UR was timely, the WCAB had no jurisdiction to review the decision – it had to go to IMR if it was to go anywhere at all.

The WCAB in reviewing the decision, ruled that a defendant can terminate home health care services if they are no longer necessary, and UR is one method of proving that they are no longer reasonably necessary to cure or relieve from the effects of the injury.

So what’s the lesson to learn here?  Well for defendants it is an old one: UR and IMR trend towards cost containment, and, of course “a trend is your friend.”

But, believe it or not, there is a lesson here for applicants as well.  There is a difference between medical treatment and a medical treatment award.  Just like we all learned in law school (or in preschool for that matter) a promise is different than performance on the promise.

The workers’ compensation landscape is increasingly becoming one where obtaining a medical treatment award is getting easier, but getting actual treatment – whether because no doctor is willing to starve his or her family by accepting workers’ comp fee schedule or because UR and IMR are very aggressive – is getting harder and harder.

So, perhaps there is some sense in applicant attorneys encouraging their clients to C&R their claims.  An aspirin in the hand is worth two on your PTP’s RFA.

Good morning dear readers!

Your humble blogger certainly missed you and sincerely apologizes for his absence.  Were you totally and hopelessly lost without me?  Have my years of diligent posts made you strong and resilient?  Or, maybe… just maybe… you didn’t notice my absence because these posts are ending up in your spam file…?

Anywho, I wanted to take some time to digest the California Supreme Court’s ruling in the matter of King.  You know the one… that case everyone has been discussing lately?  In case you think you’ve been overhearing a whole lot of checkers games lately (“King me!”) you haven’t.

The California Supreme Court, with a drop of the gavel and a stylish twirling of black robes, has crushed the hopes of many an applicant attorneys.  With one foul swoop, visions of vacation homes and eerily silent and inexcusably awesome electric cars vanished as SCOC (Supreme Court of California for those of you not hip to the lingo of the “cool” lawyers) ruled that not only does a Utilization Review doctor not owe a duty of care to an applicant, any harm resulting from Utilization Review fallout is confined to the workers’ comp system we all know and love.

So, with that in mind, let me set the stage for you as I relate this King of all blogposts (see what I did there?).

Mr. King had an accepted industrial injury for which he was receiving treatment.  His treating physician prescribed Klonopin among other drugs.  However, when this treatment was re-requested in July of 2013, some 2 years after the initial injury, UR denied it without providing a tapering program or advising of the effects of a “cold turkey” approach to ceasing its use.

To quote the ever-quotable Homer Simpson, “going cold turkey isn’t as delicious as it sounds.”

The sudden cut-off resulted in Mr. King suffering 4 seizures. A new request for the same in September of 2013 was also denied by Utilization Review.  About a year later, applicant and his wife filed suit against the UR physicians and the defendant.  The claims were tort and in civil court (which, from personal experience, appears misnamed, as it is hardly ever civil, unlike this gentlemen’s arena we call Workers’ Comp).

While the Trial Court ruled that applicant’s complaints are limited to the world of workers’ compensation, the Court of Appeal reversed, finding that while most of the claim was confined to comp, the failure to warn might not be, giving Mr. and Mrs. King leave to amend, which the defendants appealed, placing their fate in the hands of the mighty SCOC.

In the majority opinion, the SCOC ruled that Labor Code section 3602(a) provides that workers’ compensation is the exclusive remedy against an employer for workers’ compensation injury.  Not only that, authority was cited for extending this exclusive remedy liberally to just about anything tangentially related to workers comp: if the case involves a claim of injury by an employee against an employer, it’s probably going to be stranded on Workers’ Compensation Island (if you’ve never been, imagine an island of regret in a sea of spite, drizzled with the foliage of Kafka trees…)

To quote SCOC, an injury linked “in some fashion” to employment triggers exclusivity.  Thus, because the injuries alleged by the Kings “are derivative of a compensable workplace injury, their claims fall within the scope of the [WC] bargain and are therefore compensable within the workers’ compensation system.”

So… victory? Should defendants celebrate?  N so fast!  What SCOC gives with one hand, it takes away with the other.  SCOC held that “employers are ultimately responsible for paying benefits to workers who suffer injuries as a result of the utilization review process.”

What?!?  That’s right!  SCOC seems to hold that an injury resulting from the utilization review process might be a compensable consequence of the underlying injury.  So what are we talking about here?  A paper cut while opening the envelope with the UR denial?  A back sprain while picking up the heavy letter of UR non-certification?

What has applicant attorneys jumping for joy right now is that, in theory, if an applicant can tie a worsening of his or her condition to a UR denial, presumably that worsening is a compensable consequence.

But, your humble blogger would like to point this out to his beloved readers: this is not the first time this issue has come up.  The WCAB panel suggested, in McCool v. Monterey Bay that UR denial of drugs without a weaning program may result in administrative penalties.  There, UR had cut off an applicant from a particular drug without a weaning program.

Though the employer ultimately agreed to a weaning program, the WCAB advised, in dicta, that even Dubon would not save a defendant from administrative investigation if it cast a blind eye towards the very likely consequences of a UR determination.  (And yes, I did quote Homer Simpson in that blog post as well, but who could resist such a quotable character?).

So, what do we take away from this, dear readers?

No doubt, each of us will take our own lessons from the King case, and the opinion will be cited every which way by practitioners for years to come.  Your humble blogger can only submit this advice: as difficult and time-consuming as it may be, avoid “auto-pilot.”  The UR physician may, in haste and with a sense of urgency, issue a report on the status of the tree, but the adjuster must not lose sight of the forest.  Although UR may provide a basis for a denial, the claims examiner should use this as leverage to get to a reasonable result.

But, then again, dear readers, beware of free advice – often times there can be nothing more expensive!

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?

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.

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.