WCDefenseCA

Happy Monday, dear readers!  Your humble blogger has a question for you… a riddle if you will.  What is a pirate’s favorite part of California workers’ compensation?

1. Labor Code 4662 (because of all the hooks and eye patches, etc.);
2. Lien litigation (because of legalized piracy); or
3. IM… wait for it… Arrrrrrr!

The answer is obviously C, but I would have also accepted U… wait for it… Arrrrr!

Now that you’re done rolling your eyes at me, let’s take a look at how IMR is doing.

The CWCI has a new report on IMR out, and the results are pretty favorable to the defense community.  IMR volume peaked in 2018 but has steadily declined to an all time low since the program started as part of SB-863.  In 2022, there were 127,215 requests for IMR as compared to 184,735 requests in 2018.  The cost of IMR is $345, so imagine the savings to defendants represented by the drop in IMR requests – almost $20 million!

And, of course, that’s just the cost of IMR alone, not to mention all the unnecessary treatment that defendants were not forced to pay for.

The other interesting statistic is the IMR uphold rate – 2022 saw an uphold rate of 91.1%, down from 92% the year before.

What does this mean?  Well, as the system stands right now, odds are very high (as in 91.1% likelihood) that a UR determination will stand.  That is why it is so important for defendants to conduct timely and technically effective utilization review of RFAs, which includes not only timely responses but also proper and timely communication of the results to the parties involved (AA, requesting doctor, etc.)

What else does it mean?  Sacramento sees a fortune of costs being avoided by employers and insurers and is working diligently to prevent those savings, or, at the least, curtail them as much as possible.  Efforts are under way in Sacramento to require all UR physicians to not only be licensed in the relevant specialty as required for the RFA, but also to be licensed in California. 

There is clearly no purpose to this other than to make UR more expensive for employers by limiting the pool of physicians available to conduct UR.  Likewise, as discussed previously on this most humble of blogs, Sacramento is attempting to increase TTD for those 8.9% of IMR results that reverse the UR determination, extending TD beyond the 104 week cap for periods spent awaiting an IMR reversal.  At present, there is little enough incentive for AAs to request IMR, let alone litigate any technical deficiencies in the IMR results, knowing that less than 10% of those decisions will be reversed.  The prospect of an extra 2 months of TD will provide plenty of such incentive. 

SB863 went into effect more than 10 years ago now, and while it failed to eliminate Ogilvie explicitly, and, sadly, failed to eliminate Almaraz/Guzman as well, limiting the jurisdiction of the WCAB to reverse UR and instituting the IMR process is likely proving to be one of the biggest cost-saving measures for California’s employers.

Avast ye mateys!  Wednesday ahoy!

Happy Monday, dear readers!  It’s another beautiful week in paradise.  We’ve celebrated Cinco de Mayo, and, as we are clearing away signs of those festivities, we are getting ready for Mother’s day this Sunday.  In this world of uncertainty, dear readers, you cannot expect another reminder that Mother’s Day is coming up this Sunday, May 14.  It might already be too late, but do try to make those lunch reservations, order those flowers, and set aside time to give your mother a call. 

I think if our dear friends and family members were to visit us in California, they would expect to see certain things.  If they were here for a week without Sacramento trying to crush another swath of California’s businesses, they’d feel like they missed out.

So, it only makes sense that we take a look at Assembly Bill 1213, which just passed through committee at the end of April.  What does AB1213?  Well, what doesn’t it do?!?

A lot, to be fair, but primarily AB1213 exempts any periods of TD pending IMR review of treatment (and eventual overturn) from the TTD cap of Labor Code section 4656.

So, let’s take a scenario.  Applicant has a DOI of 1/1/2020.  He goes on TD and his TD would be exhausted by 1/1/2022, as per 4656(c).  Well, if applicant’s PTP submitted an RFA on 3/1/2020, and UR came back with a denial on 3/6/2020, all the periods from that 3/6/2020 denial to the IMR overturn would not count towards the 104-week cap.

What do we need to do if AB 1213 becomes law?  Well, in every file, we set reserves and value cases based on a range of exposure, factoring maximum exposure of course.  How can defendants adequately set reserves or value cases for settlement when there is almost a perpetual TD range?

It’s not all doom and gloom, of course – in 2021, IMR upheld 92.8% of UR denials.  The ultimate impact is going to be limited.  But this isn’t the only squeeze California’s employers and insurers are feeling from Sacramento.  There seems to be pressure from every end to make $100 in payroll more and more expensive for businesses in California. 

Now, if life was fair and California was interested in seeing justice for both employer and employees, when IMR denies a method of treatment, and the PTP has no other suggestions that are likely to change applicant’s condition substantially in the next year, as contemplated by 8 CCR 9785(a)(8), then we would also have regular findings that applicant is P&S retroactively to the date of a UR denial, once the IMR appeal has been exhausted.  We would also have TTD overpayment credit as a matter of right, rather than judicial discretion. 

What is good for the goose is good for the gander, after all, no?

But instead, we see a continuous stream of policies and rulings that disproportionately favor applicants at the expense of defendants in Workers’ Compensation.  My beloved readers, the secret to youth, I have found, is to maintain that adolescent naivete which objects to injustice and life being unfair.  That is how your humble blogger maintains feeling like a 20-year-old.

Like so many other recent results from Sacramento, AB1213 seems worthy of watching.  But, likewise, we can watch the cost of doing business in California as it continues to rise.

Hi there, dear readers – if you are not mad at me for Monday’s post.  I didn’t realize the suggestion that injured workers who lie at deposition or to a physician shouldn’t be trusted with any of their statements would be so controversial.

Anywho, let’s touch a slightly less controversial topic then – IMR!

As this week of good news continues, I offer you the Lexis summary of a recent CWCI study reflecting that IMR has had a 2.2% decline in requests since 2016 (about 3.8k fewer requests).

However, we’re still looking at 91.2% of IMR determinations upholding UR decisions in 2017.  That’s awesome!

So, let’s take a look at some of the realities.  First off, IMR is going to cost defendant about $400 or so, which means that it might be prudent to weigh the cost of the requested treatment against the cost of the IMR.

On the other hand, if you are an applicant attorney and you are requesting IMR, you have to know that there is a 91.2% chance of UR being upheld.  What does that mean? That means that you are not requesting IMR with the realistic expectation of getting UR overturned.  You are requesting IMR to inflict costs on the defendant.

Some applicant attorneys have boasted loudly at the Board that their intent has always been to IMR every UR denial in an effort to overwhelm the system and/or to drive up costs for defendants.

One of the things your humble blogger has observed time and time again is the frustration from some applicant attorneys, WCJs, and even other defense attorneys that defendants are paying so much money for UR and IMR on treatment that, if approved right away, would not cost as much.  What’s more, defendants sometimes even pay their attorneys to appear on these issues.

Well, there’s a good reason for this – if you roll over and provide unnecessary treatment every time it’s cheaper than UR and IMR, the requesting physicians will get wise to this and start requesting small bits of treatment over and over again.

What’s more, just like applicant attorneys have an interest making IMR cost as much as possible to encourage a more generous C&R, defendants have an interest in sending a clear message that lifetime medical treatment may well be awarded, but it will be strictly controlled by UR/IMR (and possibly even the MPN now and again).  The fact that UR is upheld nine times out of ten significantly reduces the value of future medical care, which makes a reasonable C&R that much more feasible.

What about the 2.2% decline in IMR requests?  I wouldn’t put too much weight in it just yet.  Sure, your humble blogger can fantasize about the unhappy applicant attorney deciding he’s not going to waste time with IMR requests anymore because UR always get upheld, but the more likely scenario is that there are going to be random fluctuations here and there, and unless we see a consistent reduction in IMR requests over the next few years.

So, rejoice, dear readers!  IMR seems to continue to serve the defense community well in limiting the obligation to provide medical treatment to truly reasonable and necessary requests.  Now, if we could just get the UR vendors to work on the Friday after Thanksgiving…

Are you ready for a post on IMR?  This is a good one, dear readers, because the Court of Appeal has, once again, upheld the IMR process as constitutional.  Not only that, the case of Zuniga v. WCAB was recently ordered published.

The facts aren’t particularly confusing and the ruling is pretty clear, but here’s a short summary.

Zuniga challenged an IMR determination as based on erroneous factual findings.  After prevailing on the challenge, the WCJ ordered a new IMR evaluation by a different reviewer.  However, the identity of the first reviewer (and the second reviewer) were kept secret.

Zuniga challenged the secrecy involved as a violation of due process, arguing that if he could not know the identity of the IMR reviewers, he could not, in fact, tell if the order of a new reviewer was being obeyed.

Basically, applicant was challenging the constitutionality of the IMR process as to keeping the identity of the IMR reviewers secret.  However, like every challenge to IMR to date, the Court of Appeal responded with a (now published) decision rejecting applicant’s arguments as to the constitutionality of IMR.

The COA reasoned that “confidentiality helps to ensure that IMR reviewers are independent and unbiased is reflected in an analysis of a proposed, but not adopted, change to the IMR process.”   Explaining further, the COA opinion cited Article XIV, section 4 of the California Constitution, that the Legislature is unlimited by the other provisions of the California Constitution to create and enforce a workers’ compensation system.  Thus, the due process clause of the California constitution does not limit the workers’ comp system (a fact that defendants, sadly, are all too familiar with).

The federal due process claim fails as well, as per the COA, because there is ample notice and opportunity to be heard, as per Stevens.

So IMR survives another challenge, and the defense community can rejoice as the UR/IMR process is probably the most effective cost containment win from SB-863.

That being said, your humble blogger has a hard time following the logic that leads to this result (as desirable of a result as this might be).  If the next reform found that the identity of Judges should be kept secret, would that be a due process violation?  After all, the parties can submit their arguments through trial briefs and the witness testimony can be video-recorded and provided to the Judge for review, and there will be no need for hearings because Judges can work remotely from the secrecy of their home offices… right?

Again, as desirable as this result is for the defense community (the IMR, not the secret judges – that’s just crazy talk), somehow this doesn’t pass the logic test on due process grounds.  Unless the party can independently confirm enforcement of the order or the rules involves (such as those requiring re-review by a NEW reviewer), how is compliance with the law to be confirmed?

 

And a good day to you dear readers!

Your humble blogger is back and more hungry than ever for the fair and proper results that seem to escape our files.

I bring you the case of Payne v. Federal Express, a relatively recent panel decision.

Applicant had entered into a C&R agreement with defendant, presumably with open future medical care, back in 2003.  One of the provisions of this C&R was that the parties’ AME would resolve all medical necessity disputes.

As is to be expected, a dispute arose about a particular recommended course of treatment.  Defendant submitted it to UR and then applicant requested IMR, both of which denied the reasonableness of the RFA (this was a weight loss program).  After running up defendant’s bills with the UR/IMR process, applicant then went to the AME to weigh in on the reasonableness of the treatment.  The AME concurred that the weight loss program was reasonable and necessary.

When applicant sought to set this matter for trial, defendant objected on the basis that the WCAB had no jurisdiction to resolve this issue as it was a dispute over medical care.

The WCJ concurred with defendant – because applicant had appealed the UR determination to IMR, she was now bound by IMR.  The WCAB reversed.  Citing Bertrand, the WCAB concluded that subsequent changes in law do not relieve parties of their respective contractual obligations.  The matter was remanded down to the trial level.

Unfortunately, what the opinion is lacking, much like the opinion in Bertrand, is a discussion of why Labor Code section 4062.2(f) does not control in this situation.  Specifically, the Labor Code holds that “[t]he parties may agree to an [AME] at any time, except as to issues subject to the independent medical review process …”

To your humble blogger, who is not a commissioner or a Court of Appeals Judge, but just a humble blogger, this subsection is a crystal-clear demonstration of legislative intent – only UR/IMR is to address issues of medical necessity.

Let’s take this reasoning to its natural conclusion – if the AME had retired and declined to respond to requests for comment, what would the parties have done?  Are the parties now obligated to find some other AME, or are they bound to the UR/IMR process?  Would the law invalidate any agreement to use a new AME?

Furthermore, if applicant’s position is that UR/IMR does not apply and that the AME should determine all medical necessity questions, by what right does the applicant impose costs on the defendant through the IMR process?  Is this not frivolous?  Should applicant not be ordered to pay back the costs of IMR so brazenly incurred?

The position that applicant is entitled to request IMR and, yet, is not bound by IMR’s determinations seems contradictory and unsustainable.

If a section of the Labor Code can be invalidated by “contracting” around it, by that rationale, could parties not simply contract out of the workers’ compensation system altogether?  The WCAB has shown exactly zero hesitation when the facts and the law support invalidating an independent contractor agreement and finding an employment relationship, regardless of the actual agreement between the parties – why should the WCAB hesitate to invalidate a contract agreement as to addressing future medical care in this case?

The bright side of this is, of course, that there are relatively few of these cases out there.  Accordingly, we can hope to see fewer and fewer of such disputes go south for the defense community in the years to come.

Happy Monday, dear readers!

Your humble blogger knows full well that he is, far too often, charged with bringing bad news to his beloved workers’ compensation community.  Well, remember, dear readers, that even the crocodile shouldn’t be blamed for the shade in the swamp.

With that in mind, I have some good though belated news to report to you.  Sometimes, confirmation of what we all knew can be just as pleasant, even if not surprising.  The Court of Appeal, in an unpublished decision, ruled that IMR need not be timely to be valid.  The case, of course, is Baker v. WCAB/Sierra Pacific Fleet Services, and, though it is unpublished, it is still of considerable benefit to the defense community.

The facts are pretty simple – applicant sustained an admitted injury and sought medical treatment.  The medical treatment request went through UR, which recommended against certifying the request.  The appeal to IMR followed and, with IMR upholding the UR denial, applicant challenged IMR’s determination because it was not made within 30 days of the appeal.

The WCJ, WCAB, and then the Court of Appeal all agreed that, as the 30 day timeline was directory and not mandatory, so the IMR stood.

This isn’t anything new, of course.  The Court of Appeal in Ramirez held to the same conclusion.

So what’s so great about an unpublished case?  After all, we can’t cite an unpublished case, right?

Well, we’ve had Stevens and Margaris  tell us that IMR is constitutional and speculate that a timely IMR determination is not necessary to be binding.  We’ve had Ramirez and now Baker tell us for certain that IMR need not be timely to be valid and binding.

In other words, the Courts of Appeal have sent a pretty clear message to every WCJ and WCAB commissioner in the land of, as one WCJ would say “a preview of coming attractions.”

Let’s look at big picture, for a moment – the disputed medical treatment in Baker? Pennsaid and Norco.  Drugs.  We’re not talking a whole lot of money in the grand scheme of things.  In fact, Mr. Baker’s attorney might have had more luck paying for these drugs out of pocket rather than pouring in the time and money to go to the Court of Appeal.  But it wasn’t about the Norco or the Pennsaid – it was about undermining IMR.

IMR is a wonderful thing – applicant attorneys used to be able to over-inflate future medical valuation by threatening to take every UR determination to the QME or AME, and run up the bill for the defense.  No longer – now you’re looking at a few hundred dollars every year on IMR – hardly worth the applicant attorney’s effort.

So far, so good, dear readers – have a great weekend!

 

Happy Friday, dear readers!

Your humble blogger is always happy to bring you good news, especially on a Friday.

Due to the hard work and diligence of the appellate counsel for State Compensation Insurance Fund, the Court of Appeal for the third appellate district has issued a ruling confirming what we all knew, what applicant attorneys dreaded, and what the other Courts of Appeal have already found: IMR is constitutional!

In the case of Ramirez v. WCAB, applicant/appellant “challenges the constitutionality of the independent medical review process.  He claims it violates the state Constitution’s separation of powers clause, and state and federal principles of procedural due process.”  In response the Court of Appeal, in a published decision, concluded “the Legislature’s plenary power over the workers’ compensation system precludes any separation of powers violation, and the process afforded workers under the system afford sufficient opportunity to present evidence and be heard.”

Don’t look so surprised, dear readers – this is just part of a trend, and as we all know, a trend is your friend!

Stevens held that IMR is constitutional, even when late, and Margaris seemed to confirm this as well.

I won’t go into the specific reasoning by the Court of Appeal because the ruling is published and controlling – IMR will continue to be the sole arena for determining appropriateness of medical treatment for timely denied or modified UR, and this determination will be taken out of the hands of QMEs, AMEs, lawyers, and judges.

For better or for worse, IMR will continue to be an instrument to reduce employer liability for medical treatment and for litigation costs associated with the issue.  Furthermore, because IMR can be late, there appears to be little incentive to expand the capacity or volume of IMR, because it is of benefit to the employers to delay an IMR determination as much as possible: after all, wouldn’t you rather pay for something later than earlier?

Well, here’s the downside – if the medical treatment is necessary to bring the injured worker to a P&S state, then the employer might be stuck paying TTD until IMR issues a decision.  Fortunately, there’s an easy solution to this, which involves taking a glance and the proposed treatment and authorizing it if it is likely to bring about a P&S status.  After all, if you’re going to authorize the treatment anyway, who is harmed when you fail to do the UR (except the bank account of the UR vendor)?

But, when it comes time to negotiate a C&R, the prospect of having superfluous and unnecessary treatment being reduced by IMR should make the demands more reasonable, which is good for the defense.

So, good news, dear readers – enjoy your weekend!

Happy Friday, dear readers!

Your humble blogger congratulates you on surviving another week – one riddled with Halloween trick-or-treaters and the final stretch of the Presidential election.  (Your humble blogger is, of course, writing in “giant meteor” in an effort to end it all…)

Anywho, I have some news today that’s fairly reassuring: it looks like the Court of Appeals’ decision in Margaris (IMR can be as late as it wants!) is being given due weight.

Recently, the Court of Appeal denied applicant’s petition for a writ of review of the WCAB’s reversal of a WCJ’s ruling that IMR is invalid if late.  Got that?

Ok, in case you’ve checked out for the weekend, it goes like this:

WCJ: IMR is late, but I still can’t award medical care!
Applicant: Oh yeah? I’ll show you… To the Recon Department!
WCAB: WCJ is right – even if late, only UR/IMR can award medical care.
Applicant: Oh yeah? I’ll show you… To the Court of Appeal!
CoA: Did I stutter? IMR CAN BE LATE!

Ok, so what happened in the case of Tyni v. City of Montebello?  Applicant sustained an admitted injury and his primary treating physician requested treatment that UR found to be unnecessary in a timely UR denial.  Applicant sought IMR and, when IMR did not render a decision 30 days of the application for IMR (the WCAB corrected this on reconsideration – it’s 30 days from receipt of the application and supporting documentation; see Labor Code section 4610.6(d)) he sought to invoke the WCAB’s jurisdiction to decide whether he should be entitled to the requested treatment.

At trial, the WCJ ruled that even if it is late, the determination is still confined to IMR, a ruling bolstered by the Court of Appeal in Stevens (somewhat in dicta) and Margaris as mentioned above.  Recon only reversed to correct the timeline as above, but otherwise upheld the WCJ: effectively, applicant’s request for treatment can linger for all eternity.

In this case, of course, the determination came some four months (rather than 30 days) after the application, but that is of no importance.

Now, I understand what some of my readers will say, either sincerely or sarcastically: how could this be a good system? How could employers and insurers reap the benefits of administrative delays while injured workers linger without their medical treatment?

Well your humble blogger has been told by some applicant attorneys that regardless how small or how big, now necessary or how wasteful, they will request IMR for every single denied UR to purposefully drive up costs and to clog IMR with a flood of requests.

“Settle with me now,” they say “or you’ll pay as much in IMR costs and compliance.”

Well, the rule of unintended consequences applies here too.  Guess what?  All those petty IMR requests that were initiated as punitive measures have clogged up the system to the point where even legitimately injured workers can’t have their treatment requests evaluated on time.  Even Procrustes had to eventually sleep in the bed he made.

Long story short, dear readers – it looks like there’s no inventive reason the WCAB is accepting for why IMR should be deemed invalid if untimely.  So let’s keep UR churning out timely and let IMR do it’s thing.

Have a good weekend!

 

Hello dear readers!

Your humble blogger is bursting with delight to bring you news of a great victory for defendants everywhere: IMR is not bound by time limitations!

The Court of Appeal ruled in the matter of CHP v. WCAB, Margaris that “the 30-day time limit in section 4610.6, subdivision (d), is directory and, accordingly, an untimely IMR determination is valid and binding upon the parties as the final determination of the director.”  What does that mean?  That means that it doesn’t matter how long it takes IMR to decide on an issue – the parties must sit and wait and be bound by the eventual determination.

Why is this such a good thing for defendants? Well, medical treatment isn’t medical treatment to the defense – it’s money.  Every day that the defendant does not have to pay for a treatment that is medically unnecessary is another day that the defendant gets to protect its money from wasteful spending.  Less money out means lower rates and less exposure for businesses and employers.  That, of course, means lower prices for the rest of us.

The Court of Appeal noted, of course, that it was implementing “the Legislature’s stated policy that decisions regarding the necessity and appropriateness of medical treatment should be made by doctors, not judges.”

As my learned and diligent readers may recall, the Court of Appeal held in Stevens that not only is IMR constitutional, but that there is no mechanism for enforcing the time limits imposed by section 4610.6 – even a late IMR determination is constitutional.

One of the great things about this is that the fact that IMR has more time to make a determination once UR has denied treatment is that it puts parties in the proper posture to settle their case.  Yes, the applicant wants a particular course of treatment.  No, it isn’t medically necessary or reasonable.  But, through the magic of money, the parties can agree to disagree – an injured worker can sell out the treatment to which he is entitled but doesn’t want, in order to buy the treatment he wants but to which he isn’t entitled.

And the best part is – everybody walks away happy and a winner.

Have a great weekend, folks!

Happy Wednesday, dear readers!

Your humble blogger brings you a case that’s been making the rounds of proverbial water cooler talk recently – Gonzalez-Ornelas v. County of Riverside.  It is, of course, on everyone’s favorite topic: IMR.

Applicant had sustained admitted knee injuries, and her doctor requested authorization for Synvisc injections to both knees.  UR denied the request and applicant went the IMR route, which upheld the UR denial.  Here’s where things get interesting…

The IMR report had “reviewed and considered” the report of a prior treating physician noting that conservative treatment had failed to help her symptoms, but Synvisc injections, over the past years, had in fact helped her.  However, the IMR reviewer noted that the UR decision should be upheld because there was no documentation that conservative therapies had not helped.

Applicant argued that the IMR result should be thrown out, and a re-review granted, under Labor Code section 4610.6(i), on the basis that the report was procured by fraud (because the IMR reviewer said he read the prior treating physician’s report, but didn’t really); or mistake of fact in that the IMR reviewer forgot the contents of the report when issuing his decision.

The WCJ rejected applicant’s argument, reasoning that applicant was proceeding on a flawed presumption, to wit, no one could read the treating physician’s report and disagree with the physician’s conclusions.

Not so, argued the WCJ in the face of applicant’s petition for reconsideration: there was nothing to suggest actual fraud, and the weight that should be given to the treating physician’s medical records are not common knowledge, but the domain of experts, which excludes any defects from section 4610.6(i) as argued by applicant.

The WCAB reversed, reasoning that the IMR case summary itself concludes that there was a history of arthritis to the knees, and that there were still complaints of pain even after conservative care.  The WCAB noted that “[d]enying authorization based upon a finding that there is ‘no documentation’ when such documentation is, in fact, in the possession of the IMR reviewer is” plainly erroneous and not the realm of expert analysis or opinion.

The WCAB awarded applicant a new review by IMR, and ordered the Administrative Director to provide a new IMR report “in accordance with this decision” which would, presumably, recognize, from page 7 of the panel opinion, “[a]s part of the new IMR, the ODG should be applied based upon the documentation in the record, which as discussed above, appears to support the provision of the Synvisc injections.”

Just think about this for a moment, dear readers.  Is the WCAB telling IMR how it must rule on a UR determination?  Because, if your humble blogger’s very biased, highly selective, and extremely unreliable memory serves… the whole point in not only establishing IMR but also giving it some teeth was to take medical determinations out  of the hands of the lawyers at the WCAB.

Here’s something interesting to watch: what happens when IMR comes back and says that even though there is medical documentation of conservative treatment being ineffective, the documentation is insufficient?  Will the WCAB just order defendant to provide the treatment?