WCDefenseCA

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?

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?

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!

Greetings, dear readers!

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

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

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

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

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

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

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

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

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

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

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

Just a thought, dear readers, just a thought.

California Code of Regulations section 9792.10.1, subsection (b)(2).  Just an obscure regulation gathering dust, but still an interesting point to keep in mind the next time you find yourself facing some applicant-sourced resentment over a UR denial.

Subsection (b)(2) holds that if an injured worker requests independent medical review, the request must be communicated within 30 days of service of the utilization review decision, and “[t]he request must be … submitted with a copy of the written decision delaying, denying, or modifying the request for authorization of medical treatment.”

The DWC has released a bulletin, saying that reminders of this requirement will no longer be sent out, and that section (b)(2) will now begin to be enforced.

But, this cuts both ways – the UR decision denying, delaying, or modifying the decision must now come with a new form advising the injured worker of this fact.

So, what would a devious, heartless, scheming attorney recommend to his readers?  Only the obvious – do nothing.  Don’t call applicant’s counsel on day 2 of 30 and say “Ha! Ha! Ha! You didn’t submit the UR report with the IMR request!”  After all, Napoleon Bonaparte himself is said to have said “never interrupt your opponent while he is making a mistake.”

Provide the new form, and seek strict enforcement, as the applicants’ attorneys’ Bar is with Utilization Review.

Have a great weekend!

Hey there dear readers, how is your week going?  Shall your humble blogger sweeten it with some good news?

A while back, your humble blogger had the pleasure to discuss the poison AB1213 with you because Sacramento was intent on squeezing even more out of California’s battered and besieged employers.  What AB1213 intended to do was extend temporary disability for the period between Utilization Review denial and IMR reversal.  In other words, if applicant was on TD for two months between the UR denial and the ultimate IMR reversal, those two months of TD would not count towards the 104-week TD cap, and applicant could potential received 2 years and 2 months of TD. 

AB1213 passed in the in the Senate 62 to 8 on May 26, 2023, and then in the Assembly 30 to 9 on September 11, 2023. 

Now, dear readers, you might be asking yourself… where’s the good news?  Well, the good news is that on October 8, 2023, Governor Newsom vetoed AB1213, which means that, despite all the effort, it will NOT become law any time soon.

Now that I’ve lured you in with the good news, not unlike Pennywise with a paper boat, let’s take a look at some unfortunate realities.  The California Legislature overwhelmingly passed this monstrosity of a bill and will likely do so again in the near future.  When it does, will Governor Newsome’s resolve remain firm?

Mark my words, dear readers, at the rate we’re going, your humble blogger’s April Fools’ post might become reality before too long!

Straight on till Friday, dear readers!

Happy Monday my beloved readers!

Thank you so much for all the kind applicant attorneys who said “hello” during the CAAA conference in Carlsbad this weekend.  And, for those of you kind enough to share your rotten tomatoes and spoiled onions while I was on stage, I have neither the words nor the means to express my gratitude appropriately to you!  I’ll share some more thoughts on the conference with my beloved readers a bit later in the week, but I would be remiss in my duties if I let a single day longer pass without warning you of the new copy service schedule!

That’s right, dear readers, on June 16 the Office of Administrative Law approved the new regulations on the fee schedule to take effect July 15, 2022.

So, what’s new in the regulations?  Well, lots!

First off, all bills must now include the ADJ number (Sec. 9981 (b)(3)).  There are also a new fee scheme for dates of service occurring on or after July 15, 2022:

Flat rate: $180 -> $230;

Records from EDD: $20.00 -> eliminated as a line item;

Electronic Storage Media: $3.00;

The new schedule also allows charges for contracted services, requested services, and surcharges for late amounts.

The new regulations also give a limit of 25 days from receipt by the claims administrator in which to pay or contest the services.  Unpaid portions of the bills are to be increased by 25%.

When an applicant attorney subpoenas records in order to submit them to IMR, those charges are not recoverable if the records are already in the possession of the injured worker’s representative.   Nor are charges recoverable when a subpoena has been ordered quashed.  There is a maximum of four certificate of no records charges.

Finally, and this one is of particular interest… Section 9985 allows for disputes to be resolved by filing a petition before the WCAB or by filing a petition with superior court pursuant to Labor Code section 132.

So, dear readers, after you have recovered from your Independence Day BBQ and have finished putting out the fires started by all those illegal fire-works, if you get a copy service bill for dates of service on or after July 15, 2022, what are you going to do?

Well, you stack that bill up against the language of the new regulations, and see what you have to pay and what you don’t.  But be careful, as the clock is now ticking on a response with a potential for 25% increase for failure to respond within 25 days!

Straight on till Wednesday, dear readers!

Happy Wednesday, dear readers!

Your humble blogger is here for you, as always, with a blog post on yet another one of those favorite topics… utilization review!  The case at hand is Holguin v. First United Methodist Church, a panel decision.

The basic facts are these.  Applicant’s PTP on an accepted case submitted an RFA for a Functional Restoration Program which UR non-certified.  Less than a month after the original RFA, the PTP submitted a second RFA noting “change in material facts.”  It appears that no UR report issued for this second RFA.

However, in the section provided on the RFA to document the material change in facts (page 2 reflects: “include documentation supporting your claim”, the PTP apparently did NOT provide documentation of a change in material facts, but argued with the reasoning of the original UR determination.  

After trial, the trial judge issued an Order that applicant was entitled to the functional restoration program.

On appeal, the WCAB panel first noted that Labor Code section 4610(k) provides that a UR determination stands for 12 months unless “the further recommendation is supported by a documented change in the facts material to the basis of the [UR] decision.”  Since the PTP failed to provide documentation of changes in material facts, the WCAB opined that the original UR decision stood and no further action or response was required by the defendant.

How many times have you seen the exact same thing happen?  “Resubmission – Change in Material Facts” is checked but no change in facts is provided with the RFA?  Your humble blogger sees it a plenty.  Of course, it’s always safer to run UR again but sometimes things slip through the cracks.

The Holguin case is not Earth-shattering and doesn’t change the landscape for us dramatically, but it is an excellent reminder of a potential defense if UR fails to catch every single RFA.

Happy Monday, dear readers!

Sometimes injured workers are faced with a daunting choice: undergoing surgery or having their Temporary Disability checks cut off.  Without surgery, in some case, an applicant’s condition might be considered to have reached maximum medical improvement.  Should that period of weeks and months while an applicant is “thinking” about whether or not to undergo surgery be covered as TD periods?

Let’s look at the recent panel decision in the case of Ware v. Sutter Health.  Therein, the AME declared applicant’s condition permanent and stationary, leaving open the possibility of an elbow surgery sometime in the future.  Subsequently, a new treating physician reported applicant was “TTD” and requested authority for an elbow surgery.  Well, applicant argued that argued that surgery on the horizon was enough to make him temporarily disabled, while defendant argued that until applicant actually undergoes the surgery, he remains P&S.

The WCAB ultimately sent this case back to the trial level for further development of the record, but not without offering this guidance: “If applicant’s condition, at present, is P&S, and it is found that the elbow surgery is necessary, applicant would not become temporarily totally disabled on the date of surgery, as argued by defendant. He would be temporarily totally disabled as of the date that reporting physician determined that the elbow surgery was appropriate. Therefore, under those circumstances, the issue would be, at what time did applicant’s condition warrant the elbow surgery. If applicant does not undergo the surgery, the issue would be moot.”

Reading this suggests that a defendant is right to deny temporary disability benefits until applicant actually undergoes surgery, but then should retroactively pay benefits from the date of surgery back to… when?  When does the surgical procedure become… “warranted”?

Is it when the doctor says applicant needs the surgery in a PR-2 report?  Or perhaps when an RFA is submitted? Or maybe when UR recommends authorization?  Or perhaps when IMR reverses the UR denial? 

What if UR approves of the surgery but applicant “thinks” about surgery for a few months before going through with it?  In Flannery v. WCAB, a writ denied case from 1997, the split panel reversed an award of TD from the date a post-P&S surgery was recommended in 1994 onward.  The surgery was postponed repeatedly due to various reasons, including applicant getting sick, the doctor himself needing surgery, and applicant needing a non-industrial surgery in the interim.

We’ve all seen plenty of times the situation where a treating physician prescribes a course of treatment, it is denied by utilization review, and the treating physician takes the position that the applicant will not be P&S until the recommended treatment is authorized.  Well since UR determinations are good for a year, wouldn’t that denial satisfy the definition of CCR section 10152? (“A disability is considered permanent when the employee has reached maximal medical improvement, meaning his or her condition is well stabilized, and unlikely to change substantially in the next year with or without medical treatment.”) 

At the very least, this panel opinion appears to suggest that while TD might accrue at some point prior to surgical intervention, no TD is actually due prior to the surgery going forward.

Happy Friday, dear readers!  Guess what?  I’m going to tell you two really cool facts about Sacramento.  Are you ready?

Fact number one – your humble blogger’s favorite place to get breakfast is in Sacramento.  In fact, whenever I’m in Sacramento and the hours of breakfast are unclaimed by an appearance or a meeting or anything else, few things would make me happier than darkening this place’s doorstep.  I can’t name it here of course, because it’s not entirely clear if the owners would welcome or scorn the association with this most humble of defense blogs.  But if I ever hear someone say “hey, Sacramento is 100% bad” I can always retort, with confidence and sincerity, “well, what about that breakfast place?”

Now on to fact number two: In Sacramento is a man named Gavin Newsom who serves as Governor of California.  A few days ago, he signed into law SB-537, which is set to take effect on July 1, 2021.  Aside from requiring every MPN to provide a list of participating physicians, and provide that website to the administrative director, SB-573 would also codify the recent decision in Puni Pa’u, to wit, that Saturdays are not counted towards the working days allowed to make a UR determination. 

But the biggie is the new section 138.8.  Therein, SB-573 directs the administrative director, prior to January 1, 2024, and every year thereafter, publish utilization review data.  For every physician who treated 10 or more injured workers in the year prior to July 1 of the last year, the AD will list the physicians first and last name, specialty, number of injured workers treated, diagnoses codes used, the number of Utilization Review reports denying or modifying his request for treatment, and the number of IMR reversals of UR.

The idea is that for each doctor treating injured workers, we are going to see how frequently a diagnosis is made and how frequently UR and IMR denied the recommended course of treatment.

Reader K.C. had previously advised your humble blogger that in some states, data on the prescription of opioids, along with the frequency and amounts per patient is collected and doctors see where they fall as compared to their colleagues – the idea being to share the over-prescribing doctors to tone it down with the zombie pills.

Perhaps we’ll see the same effect here?  Perhaps SB-573 will help us tone down those doctors who say “if you don’t pay for this wacky treatment, I’ll keep your injured worker on TD for the full 104 weeks.”

What do you think, dear readers?  Is there more to SB-573 that we can anticipate besides data collection?

See you on Monday folks!