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COA (again) Holds That IMR Need Not Be Timely to be Valid

July 24th, 2017 No comments

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  The Court of Appeal, in an unpublished decision, ruled that IMR need not be timely to be valid.  The case, of course, is Baker v. WCAB/Sierra Pacific Fleet Services, and, though it is unpublished, it is still of considerable benefit to the defense community.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So what’s so great about an unpublished case?  After all, we can’t cite an unpublished case, right?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!

 

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COA Upholds IMR Again!

March 31st, 2017 No comments

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!

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WCJ; WCAB; COA – all uphold that IMR can be late and still binding

November 4th, 2016 No comments

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!

 

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IMR Can Be Late! Defendants Rejoice!

June 24th, 2016 No comments

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.

IMR Is Never Late. Nor is it early. It arrives precisely when it means to.

IMR Is Never Late. Nor is it early. It arrives precisely when it means to.

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!

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CWCI Study: Roughly 85% of UR Upheld by IMR

February 22nd, 2016 No comments

Hello, dear readers!  It’s a glorious Monday Morning, and your humble blogger has some rather interesting news for you:  it appears that about 85% of UR denials are upheld (and, sometimes, even held up) by IMR.

Insurance Journal reports that CWCI’s study concludes that if you get a UR denial, you are likely to get an IMR affirmation.

Thinking about it in terms of dollars and sense (see what I did there?) if you’re paying your UR, whether the treatment is denied or recommended, and you’re paying your IMR vendor, whether the treatment is denied or recommended, perhaps it’s time to run the numbers again.

What’s the best formula for deciding whether to override a UR denial?

If [cost of IMR] x .85 > cost of treatment, override it!

On the bright side, things like physical therapy, chiropractic visits, and acupuncture are limited, by statute, to 24 (see Labor Code section 4604.5(c)(1)), so even if you override UR, after 24 visits you  might not have to provide the treatment anyway.  But, as the conventional wisdom goes, it might make sense, globally, to pre-authorize certain treatments so that you can even skip out on the UR bill too – odds are that certain injuries are going to require physical therapy or prescription medication, etc., so why suffer the UR bill when you’ll likely have to provide it anyway?

In summary, dear readers, this is pretty good news, at least for now.  As you will recall, IMR was dearly paid for with a lot of momentum to get SB-863 on the Governor’s desk and signed, and the battle still rages in the courts to about its constitutionality.  Although, as you may have heard, the Court of Appeal in Stevens held that IMR, even when late, is constitutional and the California Supreme Court, on February 17, 2016, denied to review it.

What do you think, dear readers?  Is it worth it to send every single RFA to UR and to allow an IMR?  Or would defendants be wise in adopting a measured response?

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COA: IMR, Early, On Time, or Late, is Constitutional!

October 30th, 2015 No comments

Good news, dear readers!

In case you hadn’t heard, the Court of Appeal, in the case of Stevens v. WCAB, has found California’s IMR process to be constitutional and valid.

In Stevens, a case touched upon a time or two by this most humble of blogs, applicant’s treating physician requested various medications to alleviate her pain stemming from an accepted injury, and also the services of a home health aide for 40 hours per week.  The request was denied by UR and the denial was confirmed by internal review.  Applicant then requested IMR which was also upheld the original UR denial.

The applicant then turned to the WCAB, but neither the WCJ nor the WCAB were of any help, ruling that there is no jurisdiction to invalidate the UR and IMR decision.

The Court of Appeal also ruled that IMR is constitutional.  After an excellent history of California’ workers’ compensation system and the recent reforms, the COA ruled that the Legislature, in its wisdom, put medical necessity determinations in the hands of physicians, and there is no violation of due process when the injured worker can still request review of non-scientific determinations.

Basically, if the doc got the facts wrong, the WCAB can swoop in and order a new IMR; if the doc got the facts right, neither Judges nor Commissioners are in a position to challenge the finding.

The Stevens opinion also discussed the fact that there is no mechanism for enforcing timeliness of IMR, essentially approving the Arrendondo holding.  (But, please note the Southard decision, where a split majority held that untimely IMR grants the WCAB authority to review and authorize medical treatment).  Stevens reasoned that “[w]e are unconvinced that the lack of a mechanism to enforce time limits renders the IMR process unconstitutional.  In the absence of a penalty, consequence, or contrary intent, a time limit is typically considered to be directory, and its violation does not require the invalidation of the action to which the time limit applies.”  (Page 26).

The question for practitioners at the Board in the coming months will be whether the COA’s opinion that a blow deadline doesn’t render IMR unconstitutional means that a blow deadline is not authority for the WCAB to take matters into its own hands.

It’s an interesting (but somewhat lengthy) read if you’ve got the time for it, but above are the main take-aways.

What’s next?  There are enough interested parties in this case that we can probably expect the Supreme Court to get a knock on its proverbial door soon enough (at times, your humble blogger wonders if the California Supreme Court will eventually overrule the entire workers’ comp system so that it can stop reviewing WC cases), but if the Justices will answer, your humble blogger can’t say.

For now, though, IMR continues to rule, and employers and insurers can continue to reap the benefits therefrom.

Have a great weekend, dear readers!

Please remember, folks, Saturday is Halloween – kids are out even after dark, so drive carefully!

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California Supreme Court: No Dubon Review

April 3rd, 2015 No comments

Hello, dear readers!

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

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

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

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

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

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

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

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

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

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

Are you guys sure I can do welding in this?

Are you guys sure I can do welding in this?

What are your ideas?

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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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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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