Not a Lexis+ subscriber? Try it out for free.
LexisNexis® CLE On-Demand features premium content from partners like American Law Institute Continuing Legal Education and Pozner & Dodd. Choose from a broad listing of topics suited for law firms, corporate legal departments, and government entities. Individual courses and subscriptions available.
Beware of UR and IMR physicians who use MTUS, ACOEM, and ODG guidelines to deny treatment when, in fact, other MTUS, ACOEM, or ODG guidelines do support an RFA from a treating physician
In Gonzalez-Ornelas v. County of Riverside, 2016 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB rescinded the WCJ’s order denying the applicant’s appeal of a 9/11/2015 independent medical review (IMR) determination denying authorization for Synvisc knee injections to treat the applicant’s 2004 bilateral knee injury. The WCAB granted the applicant’s IMR appeal pursuant to Labor Code Section 4610.6(h)(1) and (5) [LC 4610.6], when the IMR determination denied authorization based upon the IMR reviewer’s conclusion that there was no documentation provided to establish that the applicant was suffering from osteoarthritis in her knees that did not respond to conservative treatment, but the IMR reviewer’s conclusion was plainly and directly contradicted by information identified in the IMR reviewer’s clinical summary which documented the presence of osteoarthritis in the applicant’s knees and showed that her condition did not respond to conservative therapies other than the Synvisc injections.
(Publisher’s Note: Citations link to lexis.com; bracketed cites to Lexis Advance.)
The WCAB found that (1) as described in Labor Code Section 4610.6(h)(5) [LC 4610.6], expert opinion is not needed to determine that the IMR decision in this case was defective because it is within the realm of ordinary knowledge to conclude that it was error for the IMR reviewer to state that there was “no documentation” when such documentation was part of record, (2) the IMR determination denying treatment was without or in excess of the Administrative Director’s powers as described in Labor Code Section 4610.6(h)(1) [LC 4610.6], and (3) contrary to the WCJ’s implication, the provision of the Synvisc injection is supported and recommended by the Non-Medical Treatment Utilization Schedule Official Disability Guidelines (ODG), and it was within the realm of ordinary knowledge to determine from the face of the IMR decision, which discussed the applicable ODG standard, that use of the injections was recommended by the ODG for people such as the applicant who suffer from osteoarthritis in their knees.
COMMENTARY BY ROBERT G. RASSP, ESQ.:
This is a great example of a case where the UR and IMR processes are being used for cost containment purposes and not for the intended purpose to protect injured workers from inappropriate, dangerous and unnecessary medical treatment. What should bother all of us here is the date of injury was in 2004 to both knees of an employee who is relatively young and is significantly overweight. She has benefitted from prior injections of hyaluronic acid (brand name Synvisc) that in the medical literature clearly is beneficial for delaying a knee replacement, especially in patients like this injured worker. Bear in mind that the ODG guidelines indicate that you do not perform a total knee replacement on patients who have a BMI greater than 39.
To make matters worse, look at the timeline of this case. Dr. Thomas’ report that outlined in detail the prior conservative care was issued in December 2014. The RFA for the Synvisc injections was July 23, 2015, the UR denial was July 20, 2015, the IMR denial was September 11, 2015, the WCJ decision was January 20, 2016, and the WCAB panel decision is April 6, 2016. This injured worker has waited over 8 months for something that in conventional medicine is a community standard of care!
And the DIR/DWC administration says that the UR/IMR process is intended to reduce friction? This case is not unusual. We see cases like this in our inventory every day where denials of treatment under the process of UR/IMR is strictly based on motivation of cost containment and not protection of injured workers against unscrupulous treatment. It would take an additional full time attorney to screen UR/IMR denials in a small sole practitioner law office and to process them to the WCAB for appeals like this one. Kudos to the applicant’s counsel’s law firm in this case to spot a clear misuse of the UR/IMR process by the defendant.
This case should remind us that we need to diligently review what information is being sent to the UR physician by the defendant in the first place and then what is reviewed by the IMR physician. In this case, the IMR physician even quoted the prior conservative care that the applicant had from Dr. Thomas and prior physicians even though the IMR reviewer said there was no prior conservative care, contrary to his or her own summary of the case! The two ways the IMR process is stacked against the injured worker is here, where the UR and IMR physician have a cost containment agenda and when the UR and IMR physicians both cherry pick MTUS, ACOEM, and ODG guidelines to deny treatment when, in fact, other MTUS, ACOEM, or ODG guidelines do support an RFA from a treating physician.
Applicant’s counsel should use this case as a template for appealing a UR by sending the relevant records to Maximus showing prior conservative treatment, even if the records are dated more than 6 months before the treating physician’s RFA. In addition, this case serves as a template for appealing an IMR decision that upholds a UR denial of treatment when there is a clear material mistake of fact by the IMR reviewer that also constitutes the DWC’s acting in excess or without its power.
This case also clearly outlines how the trial judges need training on how to recognize flaws in the UR/IMR process and to properly analyze cases that are brought to them under Labor Code Section 4610.6(h)(1) through (5) [LC 4610.6].
Read the Gonzalez-Ornelas noteworthy panel decision.
© Copyright 2016 LexisNexis. All rights reserved.