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UR Doctors to be Liable in Civil Claims?

January 11th, 2016 4 comments

Hello, dear readers!  A happy Monday to you, indeed.  And, to make this a particularly special Monday, your humble blogger brings you this tale of horror emerging from the dungeon that is workers’ compensation.

Recently, the Court of Appeal issued an opinion in the matter of King v. Compartners IncIn King, the Court of Appeal granted leave for plaintiff to amend his complaint to possibly survive the demurrer granted to the defendants.

Mr. King sustained a back injury in 2008, and then sought treatment for anxiety and depression resulting from the pain.  His treating physician prescribed him medication for this condition, and it was provided by the workers’ compensation carrier for about two years before a UR determination issued decided that it was not medically necessary.  As a result, Mr. King was suddenly taken off the medication (which usually is done by gradual means).  The withdrawal symptoms included seizures and resulted in physical injuries.

A second UR request was performed, and again determined that the medication was unnecessary.

King ultimately sued both UR reviewers, as well as the UR review vendor, for negligence, professional negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress.  The defendants argued that no duty of care was owed to Kirk by the UR physicians, and that the workers’ compensation act preempts such a tort claim.

In considering the case, the Court of Appeal sustained the grant of the demurrer, but reversed the trial court’s ruling denying plaintiff leave to amend his complaint.  The theory is, of course, the harm caused by the UR physician’s failure to either authorize the medication or recommend a gradual weaning was a separate tort, completely free of the workers’ compensation claim.  In theory, really, if this tort could proceed, to the extent that the workers’ compensation claim is aggravated, the workers’ compensation insurer might have a subrogation claim, so long as the third-party tort is one of negligence and not of medical malpractice (Civil Code section 3333.1)

The Court of Appeal opinion also addressed the issue of duty, coming to the conclusion that the UR physician owes a duty of care to the injured worker.  However, the level of that duty, whether it is simply not to be negligent or the duty of care expected of a treating physician, depends on the facts, which were not adequately articulated.  Much like with the issue of liability, the Court of Appeal ruled that a demurrer should be granted, but with leave to amend.

Perhaps we’ll get to see what happens to this case down the road, but it’s a scary thought – are the attorneys likewise to be held liable for failing to suggest a weaning off from drugs?  Will treating physicians be liable for failing to timely and thoroughly respond to a UR reviewer’s request for additional information pending a UR determination?

California’s employers, long ago, struck a bargain with California’s employees – what happens in comp stays in comp.  But now the players are creating plot twists – evil twin brothers of claims and secret passage ways – that’s cheating!  And, if UR vendors must now set aside funds to cover or insure against the risk of such torts, UR prices will go up, which, of course means more expenses and thus higher premiums for policy holders.

On the other hand, it might make sense to be aware of the drugs that have serious withdrawal symptoms, and simply modify requests to allow a weaning.  Remember the McCool case?  There, the WCAB held that although UR might be valid in denying certain medication, the audit unit is not bound by UR and might impose penalties for exposing an injured worker to dangerous withdrawal symptoms.

This is also a good opportunity to point out that there are other people involved in this process: adjusters, nurse case managers, defense attorneys, even applicants’ attorneys!  Any one of them might notice this and demand a weaning schedule.  Perhaps we’ll all get sued at some point?

Toodles, dear readers – until next time!

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UR: Used to Avoid Medical Bills, Side Effects May Include AD Audit and Sanctions

November 21st, 2014 No comments

Your humble blogger had a brilliant idea recently: why not skip the coffee for a few days?  What could possible go wrong?

Well, I came *THIS* close to filing a workers’ comp claim for the resulting withdrawal symptoms (workers’ comp drives me to drink coffee, among other things, you see).  In the words of Master Yoda: “Path to the dark side, comp is.  Comp leads to exhaustion; exhaustion leads to coffee; coffee withdrawal leads to suffering.” (Thanks for the correction, MC)

So, if your humble blogger suffered so greatly from declining coffee for just a few days, how badly would an injured worker have suffered if deprived of serious pain medication upon which he or she relied for any extended period of time?

Consider, if you will, the matter of McCool v. Monterey Bay.  Applicant was in a car accident way back when in 1983, resulting in several back surgeries, and ultimately a 52% award which included future medical care.

Well, lo and behold: a UR decision elected to deny authorization for various pain medications which applicant had been receiving regularly.  Defendant elected to override UR and provide the pain medication anyway, but three months after the UR denial, applicant requested an expedited hearing out of concern that defendant would one day withdraw its good will.

At the hearing, the WCJ found applicant is entitled to future medical treatment, including the pain medication, until there is a documented change in circumstances, even though defendant continued to provide the medication at the time of the hearing.

Well, defendant sought reconsideration, and the WCAB granted.  Initially, the WCAB held that absent a finding that the UR report was untimely, there’s no basis to review the merits of the UR decision, as per the en banc Dubon holding of the WCAB.  Additionally, as applicant was receiving the sought-after medical treatment, there was nothing for the Board to do, as the commissioners and WCJs are not in the business of issuing advisory opinions to become effective in the event of some possibility in the future.

That being said, the WCAB also pointed out that the UR decision was internally inconsistent, both citing the need to slowly taper off pain medication, and then deciding to make applicant go cold turkey.  Well, in the words of Homer Simpson “going cold turkey isn’t as delicious as it sounds.”

The WCAB cautioned that blind reliance on a UR decision that is internally inconsistent could result to a defendant’s referral to the administrative director for investigation and possible penalties.

So, all in all, a happy ending – applicant gets the treatment she needs!  The defendant gets a victory!  You get a blog post!

Here are some thoughts from your humble blogger:

So, for each UR decision, it’s not only important to review the decision for timeliness, but it appears that there is some threshold the WCAB would like to see met, which in this case was internal consistency.  It would be interesting to note if the same burden is placed upon the defense for multiple UR decisions.  For example, if UR denies surgery because of an injured worker’s weight, but the next UR decision denies lap band surgery because the injured worker is not overweight enough – is that internally inconsistent?

Also, it looks like the applicant took three months to file for an expedited hearing on the matter of medical treatment – shouldn’t there be some time limit on challenging a UR decision for any reason, timeliness or otherwise?  After all, don’t circumstances change, opinions become stale, etc?

As far as your humble blogger is concerned, defendant did the right thing in this case – it’s both prudent and, dare I say it, human.  But, often enough, it’s easy to put away a “denied” UR decision and let the applicant worry about the particulars, such as requesting IMR or challenging timeliness.  This panel opinion serves as a cautionary tale for all of us.

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Bowling Star Strikes Out; Down For Comp Fraud

October 20th, 2014 No comments

So, dear readers, here we are again – another weekend gone in the flash of an eye, and just as you start feeling the symptoms of withdrawal from your workers’ compensation addiction, here it is again for that soothing dose.

Today’s post is about a dual-employment rocket scientists/brain surgeon who, despite a genius and elaborate plan to defraud his employer’s workers’ compensation insurance fund, went down for WC fraud.

Damon Fraticelli was a 27-year-old employee of the Travis Unified School District (no, dear readers, the TUSD did not employ him in the capacity of a rocket scientists/brain surgeon; that part was just your humble blogger’s Monday Morning sarcasm peeking out) and claimed an injury to his right shoulder, preventing him from properly discharging his duties as a janitor.

Of course, the day after he complained of the crippling pain to his doctor, he was video-taped bowling for over 40 minutes, and even scored so well as to have his accomplishments published in the newspaper!

Fraticelli plead guilty to felony fraud charged and got put on 5 years of probation along with an order to pay restitution in the amount of $10,000.

So, dear readers, let that be a lesson for all of us.  If you blatantly and carelessly try to rip off your employer, or trick him into involuntarily sponsoring your blossoming bowling career, you can expect a very stern talking-to.  As far as we know, convict Fraticelli may even be on double secret probation!

Aside from the fact that a fraudster got off ridiculously easy, what can we learn from this story?  Employers should get to know their employees.  Adjusters should get to know the employers for the claims.  If your applicant has a hobby that should be facing the Kaibosh because of his or her injury, make sure the Kaibosh has actually been put on, and if the Kaibosh has not been put on the hobby, the lack of Kaibosh should be on tape.

Good week to you, dear readers, and, of course, good hunting!

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Growing Trend? MPN Physicians ONLY at Listed Locations

September 29th, 2014 2 comments

Welcome back from your weekend, dear readers.  As your humble blogger started to go through workers’ compensation withdrawals, itching to get back to denying benefits, a dear friend tried to soothe my agitations with the helpful comment: “Hey, there’s always a light at the end of the tunnel.”

Well, good old Alex was right, but often enough, the light happens to be a train.

'This Mouse is going to be huge!'

My beloved readers will recall, no doubt, my post on the Cerda matter, where a WCAB panel held that an applicant can treating with any physician within a defendant’s MPN at any location, so long as the physician him or herself is listed as being part of the MPN.  Since that case, a host of others followed with a similar result.

So, what was that humble blogger’s rant about earlier? With the tunnels and the lights and what small children and young-at-heart adults refer to as “choo-choos”?

Submitted for your consideration, the writ denied case in the matter of Ayers v. San Diego Unified School District, in which the Workers’ Compensation Appeals Board, adopting the WCJ’s opinion and reasoning, denied reconsideration of the finding that an injured worker is limited to the physicians listed at the listed location, and not at every location a listed physician may treat or affiliate.

The facts of the Ayers case are actually pretty good – an (admittedly) injured worker selected an MPN physician and wanted to receive treatment at that physician’s non-listed location.  However, the MPN printout reflects that “providers listed on the [MPN website] are deemed in-network providers at the listed location only and no other.”  Nevertheless, the injured worker selected a treatment location that was farther away from applicant’s residence than three other treatment locations in the same specialty.

At an expedited hearing, the WCJ held that the MPN website provided adequate notice that an applicant could only treat with the listed physicians at the listed location.  On applicant’s petition for reconsideration, the defense raised the argument that, under Labor Code section 4616(d), “[i]n developing a medical provider network, an employer or insurer shall have the exclusive right to determine the members of their network.”

The WCJ’s report placed special emphasis on the fact that the applicant was made abundantly aware of which physician (and which location) was within the MPN, and which was not.  Additionally, the WCJ specifically held that the Cerda decision, as discussed above, was distinguishable because the public was not placed on special notice (by a similar disclaimer) that the physician selected by the injured worker there was only in the network at that particular location.  The Court of Appeal denied review.

So, you’re probably saying to yourself right now “I think they gave me decaf by mistake…”  Otherwise, you’re probably thinking to yourself (because, unless you accidentally drank decaf coffee instead of regular, there’s no excuse to talk to yourself out loud, or so your humble blogger is repeatedly reminded by friends, family, and certain members of the medical community) “where’s the train? That sounds like an actual light.”

There’s about a dozen panel decisions or so out there with a similar holding to Cedra, although your humble blogger will let applicants’ attorneys do their own leg work in finding them.  By contrast, the WCAB’s opinion in the case of Tabak v. San Diego Unified School District comes to the same conclusion as Ayers.

What we’re seeing, effectively, is a growing split in the panel authority.  Once there is an adequate split in the panel authority, the Court of Appeal (or an En Banc panel) gets involved, and then the Workers’ Compensation community finds itself in the shoes of a man walking down a dark tunnel – blind, scared, and unsure if the light at the end of the tunnel is the sun or a train.

In the meantime, dear readers, I suggest we follow the example laid out in Tabak and Ayers, and update all of our MPN websites to reflect that “providers listed on the [MPN website] are deemed in-network providers at the listed location only and no other.”

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5-day Mailing Period for Panel Strike Process

March 17th, 2014 No comments

Hello, dear readers!  Did you miss me?  As a peace-offering for forcing you all into WCDefenseCA withdrawal (my dog ate my blog posts – I swear!), I bring you the interesting case of Carlos Cabrera Razo v. Las Posas Country Club.

In pre-SB-863 California Workers’ Compensation, after a panel issued, a party had to make empty and meaningless gestures to consider using one of the panel QMEs as an AME.  10 days after the panel issued, the parties could begin the strike process, to leave the last QME standing.  If, however, a party failed to strike a name by the 13th day after the panel issued, the other party could make the selection.

Interestingly, as we learned in the Guillen case, the 10-day waiting period to strike is not mandatory, and a party can strike immediately.

Well, SB-863 changed several things about the panel process, which, in his heart of hearts, your humble blogger hopes will join parachute pants and snooze buttons on smoke alarms in the land of bad and abandoned ideas.

SB-863 got rid of the need for meaningless AME offers and boilerplate Primary Treating Physician objections.  It also codified Guillen in the sense that there is no longer an argument for requiring a 10-day waiting period prior to starting the strike process.

But, it also got rid of the 3-day waiting period.  (See Labor Code section 4062.2(c).)

So, we have the issue of the Razo case.

In Razo, the original panel was issued on October 18, 2012, and a replacement panel was ordered on November 30, 2012, which then issued on January 3, 2013.  Defendant struck one name from the panel on January 11, 2013 (8 days later), and then on January 14, 2013 (11 days after issuance) selected a QME from the panel.  Applicant struck a name on January 15, 2013 (12 days after issuance).  Was applicant’s strike valid?  This question turned, naturally, on whether the 2012 version of Labor Code section 4062.2 applied to a 2013 panel, or if it was the 2013 version.

The WCAB relied on section 84 of SB-863, which made all sections applicable to all pending matters, unless otherwise stated.  Accordingly, even on an pre-1/1/13 injury, and even if the panel was requested or ordered prior to 1/1/13, the fact that the panel was issued after 1/1/13, means that there is a 10-day strike process, and not a 13-day strike process.

HOWEVER – the panel also held that the 5-day waiting period applies to the strike process, rendering applicant’s strike timely.   (See California Code of Civil Procedure section 1013; Messele v. Pitco Foods, Inc. (2011; en banc).)

Here’s the problem though – for years we’ve been told that the 5-day mailing period does not apply to the strike process.  In fact, the CAAA repeatedly told its members to rely on the case of Alvarado v. WCAB (2007) 72 CCC 1142 for the proposition that while the 5-day waiting period may apply to the timing of a panel request, it does not apply to the striking of a name from a panel.  (In case you’re wondering, yes – the panel does specifically disagree with Alvarado.)

So, if this case is any indication, the parties have an additional 5 days to make a strike upon one of the names from a panel.  It also appears that the parties have an additional 5-day delay in getting to pick a QME from the panel.

Don’t these petty disputes make you wish you could just pick your own QME?

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QME Panel 10-day Conferral Period NOT Mandatory

August 1st, 2012 1 comment

It is with some reluctance that your humble blogger writes this post, grudgingly agreeing with the applicant’s position in the case of Yesenia Guillen v. Adrid International, LLC.  Normally, your humble blogger only agrees with an applicant’s withdrawal of his or her claim, followed by an expedition return to work and a most sincere promise to be more careful in the future.  Here, however, applicant is in the right when it comes to the mandatory 10-day “conferral” period following the issuance of a panel.

In Guillen, the parties were issued an Orthopedic specialty panel and, waiting but six days, applicant struck a name from the list of physicians.  Defendant did not respond to the strike.  Instead, Defendant proposed the use of one of the names on the panel as an Agreed Medical Evaluator, and then, receiving no response from applicant, struck a name on the thirteenth day.  Applicant made no response and Defendant proceeded to select the Qualified Medical Evaluator it had originally proposed as an AME as the PQME for the matter and scheduled an appointment for the applicant.

When the applicant did not appear for her evaluation, the matter proceeded before a workers’ compensation Judge to address the question of whether applicant’s “premature” strike was ineffective because Applicant did not wait to strike until after the 10-day conferral period prescribed by Labor Code section 4062.2.

The WCJ held that the strike was ineffective and that, essentially, the 10-day waiting period was mandatory.  Responding to applicant’s petition for reconsideration, the Workers’ Compensation Appeals Board first noted that applicant’s attorney should have instead filed a petition for removal, as discovery  orders, such as panel issues, are not final orders.

However, treating applicant’s petition as one for removal, the WCAB held that the 10-day conferral period once a panel has been issued is not mandatory.  The non-striking party still has the full 10-day conferral period plus three working days in which to make its strike.

Prior to this non-binding panel decision, your humble blogger observed some parties communicating their strike with the caveat that the strike is effective the “first working day a party has the right to strike a name from the panel.”  This is a caution approach and a practical one, noting that often enough the names of a panel are clearly not AME material, especially in cases where the injury is denied.

I note here, however, that the applicant’s lawyer should have been required to take further action.  Once an appointment has been noticed, applicant should have responded to opposing counsel, perhaps providing a carbon copy to the selected PQME, explaining that applicant will not attend the evaluation.  This will avoid the no-show costs no-doubt incurred.  Perhaps the issue will be litigated and decided in future cases?

Now, all that’s missing from the panel QME process is to make the panel QME process voluntary, and allow the parties to agree to retain their own QMEs once again!

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