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WCAB: IMR Need Not be Timely to be Binding

September 14th, 2015 No comments

Good Morning, dear readers!  Your humble blogger has missed you very much, and is so happy to be back on your screen and your e-mail in-box.  Just last week, as your humble blogger walked whistling to himself and thinking of more blog post to write, he was confronted with an angry crowd.  At first I thought it was a host of applicants’ attorneys, or possibly disgruntled lien claimants.  It actually turns out that a recent rage-a-holics anonymous meeting was abruptly cancelled because someone forgot to bring coffee and doughnuts, and your humble blogger just happened to be in the wrong place at the wrong time.

Freshly released from intensive care and after reading several notes that started apologizing and quickly escalated into threatening before calming down to apologizing again, your humble blogger is back and ready for action!

Today, I bring you the story that will warm the heart of anyone who loves IMR – the case of Arredondo v. Tri-Modal Distribution Services, Inc., recently denied review by the Court of Appeal.  Applicant’s case-in-chief was resolved via stipulated award with future medical care included, and, invoking this award, the primary treating physician requested authorization for medication, physical therapy, and a back brace.  Timely UR denied certification, and applicant appealed using the IMR process.  IMR, however, was not timely, having been requested on December 24, 2013, and only issuing an opinion on April 25, 2014, upholding the UR determination.

Applicant had scheduled an expedited hearing, and argued the IMR determination was invalid because it was untimely.  Labor Code section 4610.6(d) provides that “[t]he organization shall complete its review and make its determination in writing, and in layperson’s terms to the maximum extent practicable, within 30 days of the receipt of the request for review and supporting documentation…”  By contrast, between December 24, 2013 and April 25, 2014 there are 122 days which, pending confirmation from your humble blogger’s accountant, appears to be more than 30.

Following a trial, the WCJ concluded that the WCAB has no jurisdiction to overrule IMR based on an untimely determination, reasoning that 4610.6(g) makes an IMR determination binding on all parties, and, furthermore, the bases for appealing an IMR decision are listed in section 4610.6(h), but limits the remedy upon a successful appeal to a new IMR determination.

In considering applicant’s petition for reconsideration, the WCAB noted that the time limit for an IMR determination is actually up to 45 days – 15 days to provide the relevant information to IMR, and another 30 days after the information has been provided.   However, the WCAB affirmed the WCJ’s “determination that the WCAB does not have statutory authority to disregard the IMR determination in this case…”

Under the WCAB’s reasoning, the legislature, in enacting SB-863, meant to have medical treatment determinations made by medical professionals only.  Furthermore, the effect of the language of 4610.6(d) is meant to guide the IMR determination, rather than to invalidate the effect of the decision.  In other words, 4610.6(d) has no effect if it is disregarded.

One commissioner dissented, however, reasoning instead that IMR should be treated much like UR – if it fails to meet the timeliness requirements as laid out in the relevant statute, it loses its immunity from WCAB review and the issue of medical necessity should be resolved by the WCJ.

Does this issue seem at all familiar, dear readers?  Because your humble blogger provided a post back in June – Saunders v. Loma Linda University Medical Group – that addressed a similar issue.  In that case, a split panel found that an IMR determination that came in five months after the UR decision was referred to IMR was NOT timely and thus invalid, granting the WCAB jurisdiction to determine whether the requested treatment should be awarded.

So… what’s the answer, dear readers?  Does IMR have to come back no later than 45 days after the initial request?  Or, can IMR let the injured worker languish and wait for medical treatment?  The split in opinion between these two panel cases appears to provide a reasonable basis to seek reconsideration.

But, here’s a scenario for you to consider.  UR denies treatment and the injured worker requests IMR.  When IMR doesn’t come back two months later, the injured worker files for an expedited hearing.  The WCJ rules that, because IMR is untimely, the WCAB has jurisdiction to determine if medical treatment should be awarded as requested, but also concludes that the reasoning articulated in the UR determination is persuasive and declines to award medical treatment.  Applicant seeks reconsideration, and the WCAB reverses, awarding the medical treatment instead.  Has the defendant lost its opportunity to appeal the determination regarding jurisdiction?

Have a good week, dear readers!

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DWC: How About We e-mail Med Reports to IMR?

August 17th, 2015 1 comment

Hello, dear readers!

Your humble blogger is back,and so are you!  Are you ready to help me take on the workers’ compensation system in California one sarcastic and grossly inaccurate blog post at a time?
Well, those of you who, for some unthinkable reason, have read this blog before and have come back will recognize that your humble blogger is a big fan of technology.  Ideally, workers’ compensation will continue to modernize until all the work is done by robots and we all have the same job: sipping Oban and chuckling about how tough it used to be.
Presumably, the discussion might also include transmitting records and receiving reports from QMEs electronically, but who knows?
Your humble blogger is all for this, of course.  However, we’ve seen more than one instance where government agencies and private insurers alike have accidentally released the personal and medical information of countless injured workers.
If, ultimately, insurers are required to respond to every IMR request by electronically transmitting medical records, who will be responsible for the security of the injured worker’s privacy?  Will paper-based insurers suddenly be required to update their systems and purchase security software?  What happens if the leak is on the side of the IMR vendor?
Hopefully this will be addressed at the meeting.
What do you folks think about allowing records to be transmitted electronically to QMEs?
My take is that there are a lot of benefits: save on paper; save on postage; save on time for the PQME to get the records (we already have a 20-day delay to allow opposing counsel to review the records before they go to the PQME); and, best of all, there is a very clear record of exactly what was sent to the PQME and when.
The downside is, of course, that we would likely see even larger PQME bills for document review.  Not every QME is going to print out the records sent, and might take a slow and methodical approach to reading all the records on the screen.
What are your thoughts, dear readers?  Would you like to see a rule requiring QMEs to accept records and reports in electronic format?  Would you like them to be required to transmit their reports via e-mail?
Have a good Monday!
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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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WCAB: AME Reports Must Go to IMR

April 15th, 2015 No comments

Hello, dear readers!

Is submitting an AME report, or a PQME report, to IMR required?  In the case of Garibay-Jimenez v. Santa Barbara Medical Foundation Clinic, the panel of WCAB commissioners answered: “Yes.”

Applicant sought to appeal a timely UR denial by submitting the issue to IMR.  Both parties had in their possession AME reports, but neither party sent them to IMR before the decision was made.  The WCAB, reversing the WCJ, ruled that Regulation 9792.10.5 and Labor Code section 4610.5(l)(1) require the defendant to provide AME reports to IMR for consideration.   “The error cited by applicant was the failure of both the UR and IMR physicians to review the reports of the AMEs who recommended the left ulnar nerve decompression and post-operative physical therapy.”

The WCAB held that relevant regulations impose a duty upon the employer (and its insurer) to provide relevant records to IMR, and when the defendant fails to do this, any adverse determination by IMR is subject to an appeal and, possibly, an IMR re-review at the employer’s expense.

Now, your humble blogger may not know the first thing about workers compensation, or about fancy cars, or big city doings, or even the new-fangled things the kids use like the twitter and the Instagram… but I do know what the word relevant means.  And, from what it looks like, an AME report (or reports)… well, relevant it’s not.

What opinions could an AME offer on the issue of medical necessity or the need for a particular course of treatment?  After all, compensability of the injury is not in question – the injury is already admitted.  Nor is the issue in dispute a total medical discharge.  The AMEs can’t offer much by way of necessity of medical treatment, after all, because Labor Code section 4062.2 specifically prescribes submitting to AMEs the issues reserved for UR and IMR.

So… what could the AME offer by way of “relevant” information? IMR can competently summarize records, and IMR is not concerned with matters of work restrictions, permanent disability, apportionment, etc.  The only relevant question is whether the treatment requested by the primary treating physician is medically necessary… and the good folks and UR and IMR are supposed to tackle that one themselves.

Now, you might say “Hey, Greg, the AMEs are the ones that recommended the treatment, so their opinion IS relevant.”  Well, if your humble blogger were sitting next to you when you said that, you would get the frowning of a life-time.  California Code of Regulations section 9785, tells us that the primary treating physician is “the physician who is primarily responsible for managing the care of an employee, and who has examined the employee at least once for the purpose of rendering or prescribing treatment and has monitored the effect of the treatment thereafter.”  Furthermore, the same section tells us that the employee can have only one primary treating physician at a time.  So, while the AMEs can recommend treatment, the PTP is the one who is supposed review the recommendation and either concur or reject it.  And, whatever the PTP decides to do, his or her own report is the relevant one, not the original AME report.

So what is so “relevant” about AME reports?  Well, it looks like the WCAB considers the reports relevant, so defendants would be wise to provide AME and QME reports to IMR, even if the applicant has it in his or her possession.   What’s the downside to sending everything, out of fear of leaving out something that might be later considered “relevant”?

We get to suffer through accusations of flooding the IMR reviewer with irrelevant information in the hopes of hiding a needle in a haystack, as was the case when IMR was just rolling out.

Now, don’t get me wrong – the use of AMEs is a great thing.  It speeds up litigation process, it contains costs on panel disputes (which are now expected in almost every single case), and it provides an incentive for doctors to be reasonable and fair and to establish trust from both the defense and the applicant communities.  And, it doesn’t seem too far-fetched for the parties to trust an AME on the issue of medical treatment necessity.  But, if we’re not submitting the issue of medical treatment to the AME, and we are going the UR and IMR route, your humble blogger submits that medical-legal reports are not relevant.

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IMR: No In-Home Care! PTP: We Asked for Handrails on the Bathtub…

April 6th, 2015 No comments

Hello, dear readers!

Your humble blogger greets you with wishes of a Happy Easter and a Happy Passover!  Some of you, no doubt, are enjoying your Cadbury eggs, laughing maniacally as you observe your fellows eating unleavened bread.  In the meantime, your humble blogger, as he brushes Matzo crumbs off his desk and eagerly awaits the post-Easter chocolate sales, has a bit of a blog post for you.

In the matter of Takafua v. FP International, applicant’s case-in-chief had already been resolved with the future medical care rights left open.  The primary treating physician submitted a request for an assessment of assistive devices, reasoning that the injured worker might need devices for safety reasons at home, and possibly a new vehicle with a new lift.  This followed applicant’s fall in the bathtub, resulting in a head injury and a trip to the emergency room, as well as an ankle sprain.

The request was timely denied by UR.  Then it gets interesting.

IMR issued a decision upholding UR’s denial, reasoning that services at home, such as shopping, cleaning, and laundry, and durable medical equipment, are not necessary.  But the request was for an assessment of applicant’s needs for assistive devices.

The matter proceeded before the WCJ, who ordered IMR to provide a re-review with another reviewer, pursuant to Labor Code section 4610.6(h), under subsection 5: “[t]he determination was the result of a plainly erroneous express or implied finding of fact…”

Now, hypothetically, if IMR had come back and said that it is not reasonable to have assistive devices, perhaps the result should have been different.  After all, if IMR has already determined that whatever devices an assessment would recommend would not be medically necessary, the assessment becomes somewhat of a moot point.  But, in this case, IMR is answering a question no one asked.

Defendant filed for reconsideration and the WCJ’s report was adopted and incorporated, denying the petition.  The matter was denied review.

Now, what result? The original request was made in April of 2014.  That means that, as of January, 2015, the matter could proceed to IMR for a second review.  In other words, a gentleman with an admitted injury to the bilateral knees, already having suffered a fall, a head injury, and a sprained ankle as a result of falling in the tub, will likely wait one year before there is an assessment of what assistive devices he would need in his home and car.

On top of that, defendant is out the litigation costs.  Furthermore, aside from just the human considerations for the potential hurt to applicant – what about the increased medical bills that would likely be tied or claimed to this injury, all on defendant’s dime?

Your humble blogger isn’t privy to all the facts, of course, not having been a party to this case, but from the looks of the WCJ’s report and the panel opinion, it may have been economically prudent, both in the short term and the long term, to just authorize the assessment.  After the assessment came back, it probably would be prudent to authorize the assistive devices too, at least in a financially feasible way.

Why the short term? Because you can probably prevent more injuries, and prevent the need for even MORE medical treatment, by putting handrails in the bathtub and anti-slip mats on the floor.  Why the long term?

Because, in the long term, we in the defense community have a reason to be the reasonable side – not the side making outrageous claims; not the side that’s calloused and foolhardy and reckless with the health of injured workers, like some doctors and attorneys that herd somewhat-injured workers into serious surgeries to be maimed.

We want the credibility of denying medical treatment for a good reason – such as a spinal surgery in a particular applicant’s case will likely maim him or that general anesthetic, in another case, will likely kill the patient because of his morbid obesity and the extra difficulty in properly calculating the right amount of sedative.

Or, the more common and less dramatic scenario, that because the last 8 chiropractic sessions have proved completely ineffective, further chiropractic treatment is inappropriate at this time, or that if applicant can take a 1 hour bus ride, he’s not entitled to a limo instead.

Gear up, dear readers – it’s going to be a bumpy week!

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Failure To Recon Finding of Defective UR Negates IMR Process

December 10th, 2014 No comments

Happy Wednesday to you, dear readers!  Last week, some of your humble blogger’s acquaintances knocked on his door seeking help.  Not really interested in my lawyerly wares, they instead asked for my intervention on their behalf with a certain deity who controls the storms.  After sacrificing the appropriate number of goats (too few would have been insulting), your humble blogger secured a year’s worth of rain for California.  Unfortunately, the fine print discussed delivery as all on one day, and all in the Bay Area.  In other words, dear readers, stay safe out there – the storm is a-brewin’.

Speaking of storms a-brewin, there’s going to be another one on the issue of Utilization Review.  I know, I know, it’s settled law –Dubon has made clear that if the UR report is timely, that’s the end of it.  Right?  There’s no monster under the bed anymore… is there?

The case your humble blogger brings to your hawk-like attention this fine morning is that of Jovel v. Sisters of the Holy Name.  In that case, applicant filed for an expedited hearing, and eventually argued that defendant’s denial of authorization for treatment requested by the primary treating physician was invalid because the underlying Utilization Review decision suffered from a material defect, to wit, the UR physician was not provided relevant information regarding past treatment.

The WCJ found that the UR report was materially procedurally defective, but, instead, ordered the parties to return to UR to provide a full documentary record to the UR physician and obtain a new decision.

By way of background, dear readers, the WCJ’s decision was issued during that short period between Dubon I and Dubon II.

Ok, so we have what the WCJ has found to be a materially defective UR decision, but, as the WCJ reasoned – even with the assistance of the materials not previously provided to the UR physician, how is the WCJ supposed to decide if this treatment is really necessary or not?  After all, if the Primary Treating Physician’s opinion was sufficient, why would there be a UR?  If a Juris Doctorate makes one  a doctor, why does the restraining order presently in effect against your humble blogger prohibit me from performing any more surgeries?  Good questions, every one.

Applicant petitioned for reconsideration, but defendant did not.  So, while applicant was able to challenge the WCJ’s order to go back to UR, the defendant did not timely seek reconsideration of the finding that UR was defective.  The WCAB reviewed the relevant medical records, and found that the WCJ’s determination that UR was defective holds, but that the supplemental reports that were not provided to UR justify the requested treatment.  The WCAB ordered defendant to authorize treatment.

In other words, dear readers, it may be necessary to seek reconsideration of any finding relating to the validity of UR, unless, of course, the issue is timeliness.

If you don’t hear from me on Friday, dear readers, your humble blogger is probably without power, and his computer is in a box of rice drying out.

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COA To Review Constitutionality of IMR

December 8th, 2014 No comments

Your humble blogger, dear readers, has a little cousin named David.  I won’t bother you with the Grinberg  family roll call, but it’s sufficient to say that through a series of marriages, adoptions, blood vendettas, and one court order, your humble blogger has a young cousin who is soon to finish high school.  David, when he was reaching the end of eight grade, desperately wanted a smart phone.  His parents, not inclined to waste good money on a zombification device for their child, resisted.  But David was unstoppable: every possible chore was done before it was asked for, his grades saw improvement, and he readily gave up his allowance and reasonable gift requests hoping to get the smart phone of his dreams.

Eventually, his parents relented, and, just before high school started, he got the latest iPhone, with a budget for “apps” (kids these days – amirite?) and headphones and a carrying case, etc.  Little David was beyond happy, and when he brought it to his new high school, it was confiscated within a week.  You see, whatever deal he made with his parents didn’t trump the high school’s policy barring cell phones (even smart phones!) in school.  David was devastated – he had worked so hard, given up so much, and now it was all for naught.

At Thanksgiving dinner, David told your humble blogger about how unfair it was, and I agreed – even after all these years, the phone remained confiscated and the hurt was still there.

Now,  you can imagine, dear readers, if poor little David is still complaining about the unjust deprivation of the fruit of his labors, how is the defense community going to feel when it’s crown jewel of SB-863, IMR, has been once more placed in jeopardy of life and limb by the Courts!

Brace Yourself Meme - brace yourselves COA Review is Coming

In case you hadn’t heard, on December 3, 2014, the 1st District of the California Court of Appeal issued an Order to Show Cause – the Stevens matter, which your humble blogger humbly blogged about previously, is going to be reviewed by the Court of Appeal, which does have the power (but, hopefully, not the inclination) to overturn the IMR procedures on constitutional grounds.

The frustrating thing about this is, as many have predicted, while the gains made by the applicants, their attorneys, and the service providers/lien claimants in the workers’ compensation community are likely to stay, the bargained-for benefits of the defense community are quiet likely to be eroded by subsequent litigation and legislation.

IMR is one such gain, and this case may result in the loss of a major gain made by defendants.  The Court of Appeal, empowered to overturn the rule on constitutional grounds, could find that IMR’s procedures, or even the lack of WCAB review of the underlying UR decisions, is a deprivation of due process for injured workers.

In all likelihood, we won’t see a final result soon, as any decision by the Court of Appeal will likely be appealed to the Supreme Court.  In any case, it would be a good idea to start planning a new wave of legislative reforms.  Your humble blogger could only suggest that, this time, the self-insured groups be allowed into the negotiating room and that their collective resources and influence contribute to new legislation.  Some things on your humble blogger’s Channukah wish list?  That’s a long list (one for each candle-lit night), and perhaps we’ll have to wait for the first night of Channukah to get to it.

Another week awaits us, dear readers – cowboy (and cowgirl) up!

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WCAB: Communication of UR Decision MUST Be Timely Made to go to IMR

November 24th, 2014 No comments

Welcome back from your weekend, dear readers!  The rains are a ‘coming.  The cold is setting in.  Turkey day is almost upon us, which, of course, means that we can expect a flood of “Black Friday” related injuries and Christmas decorations starting November 28.  But, before we look too far ahead, there’s this Monday, and a “Significant Panel Decision” issued by the WCAB.

This one is on the subject Utilization Review, which continues to be somewhat of a clumsy, frequently mutating wolf in the deep dark woods of workers’ compensation.

It makes sense – no? Arguably the most expensive and most valuable benefit available to injured workers is the potentially limitless medical treatment.  The UR-IMR procedure puts a pretty solid clamp-down on this, no?

In the matter of Bodam v. San Bernardino County, the issue of UR timeliness was again explored, as UR timeliness appears to be the only effective challenge to UR nowadays (other than a vigorous applicant’s attorney repeatedly changing treating physicians until the requested treatment is authorized).

Applicant’s primary treating physician requested authorization for a three-level fusion surgery by facsimile (the request was made by facsimile, the procedure was not to be performed over facsimile), and defendant referred the request to Utilization Review that same day.  The UR vendor denied treatment three days later, and defendant mailed the decision five days after that (on the eighth day after the request was made).

So what’s the big deal?  Treatment was timely denied… right?  Not so much.

The WCAB held, in this significant panel decision, that the timelines for communicating the decision are equally mandatory.  The WCAB cited Labor Code section 4610(g)(1) noting that a UR decision “to approve, modify, delay, or deny requests by physicians for authorization prior to … the provision of medical treatment services to employees shall be communicated to the requesting physician within 24 hours of the decision.  Decisions 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…”

In other words, if UR denies, modifies, or delays a request prior to the treatment being provided, then the decision has to be faxed or called in to the doctor within 24 hours.

Do not go to IMR; do not collect $200; go directly to WCAB Medi-Jail.

The WCAB held that the defendant’s UR process was defective because the UR decision was not communicated to the doctor within 24 hours of reaching a decision, AND because it was not communicated in writing to the injured worker, the applicant’s attorney, and the doctor within 2 business days of the decision being made.

The WCAB then held that the WCJ properly ordered development of the record prior to making a determination as to the merits of the request for authorization.

Your humble blogger is aware that some UR vendors immediately fax and mail out the determination directly to the injured worker, requesting physician, applicant’s attorney, adjuster, and even defense attorney.  Perhaps this is a good practice for all UR vendors to adopt?

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WCAB: UR Subject To Timeliness Challenge ONLY; All Other Appeals -> IMR

October 8th, 2014 No comments

Come on, dear readers, how often does your humble blogger, jaded by the world of workers’ compensation and made cynical by so many of those that dwell in it, have good news for you?  Well, today is one of those days.

You remember the countless blog posts your humble blogger diligently prepared on the subject of Dubon can now be forgotten.  The endless analysis done by your diligent attorneys on whether or not a particular UR decision can survive a merit-based challenge can now be stricken from your bill (just kidding).  Why, you might ask?  Has Greg started advocating civil disobedience?  Is this a call to arms?  Is this mad defense attorney seeking to violate 18 U.S. Code § 2385?

Relax, dear readers!  Until there is a return of prohibition or a ban on coffee, your humble blogger will probably not be called for armed revolt.  However, it is with great pleasure that I can report that the Workers’ Compensation Appeals Board, in an en banc decision, has revered most of its prior holdings with respect to the susceptibility of the UR process to non-IMR related challenges.

Basically, the WCAB held that “[a] utilization review (UR) decision is invalid and not subject to independent medical review (IMR) only if it is untimely.”

So, if UR denies the request for authorization in a timely fashion, even if the stated reasoning appears to be “quarter came up tails” the decision goes to IMR.

If the UR decision is not timely, then the injured worker still bears the burden of proving that the requested medical treatment is medically necessary.

Your humble blogger’s favorite quote from the latest Dubon decision?  “The legislature has made it abundantly clear that medical decisions are to be made by medical professionals.  To allow a WCJ to invalidate a UR decision based on any factor other than timeliness and substitute his or her own decision on a treatment request violates the intent of SB 863.”

So, like the bad guys in Lethal Weapon 2, UR can visit the legal world from the medical, make a bunch of applicants upset, and then claim diplomatic immunity, of sorts, subject only to IMR.

Now dear readers, what does that make you think? What does that make you feel?  What does it make you think about what you feel?

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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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