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.
In Bowen v. County of San Bernardino, 2019 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB affirmed the WCJ’s decision granting applicant’s appeal of the 3/7/2016 independent medical review (IMR) determination upholding the utilization review denial of the prescription for Norco, when the IMR reviewer denied authorization for Norco on the basis that there was no documentation of functional improvement with the use of Norco, notwithstanding that there was documentation of specific functional improvements in the records not reviewed by the IMR reviewer.
The WCAB found that the IMR physician is obligated to look at all the submitted reports and to consider the entire record prior to rendering the determination, that the denial of the authorization based upon the finding that there is “no documentation” when such documentation is, in fact, in the IMR reviewer’s possession is plainly an erroneous fact as a matter of ordinary knowledge and not a matter of expert opinion as described in Labor Code § 4610.6(h)(5). It is also an action taken without or in excess of the Administrative Director’s powers as described in Labor Code § 4610.6(h)(1).
As stated by the WCAB, the IMR reviewer here ignored the clear and convincing evidence that the use of prescribed opioid medications enabled applicant to perform activities of daily living and reduced her pain levels. As part of the new IMR under Labor Code § 4610.6(i), applicant is permitted to re-submit the 11/23/2015 IMR final determination approving the Norco prescription in addition to medical reports of her treating physician.
PRACTICE POINT: This unanimous WCAB panel decision emphasizes the importance of monitoring the UR/IMR process from start to finish in order to maximize the chances that the treatment will be approved. Requesting physicians should make sure that both the RFA and the medical record contain evidence of compliance with the MTUS. Applicant attorneys need to make sure that the documents going to IMR include everything that tends to show that the request is medically necessary, including prior IMR determinations reversing a UR denial. This is particularly important in the case of a request for opioids given the current controversy surrounding the prescription of addictive drugs. If IMR upholds the UR denial, the applicant attorney must make sure that all of the relevant documents sent to IMR were actually considered by the reviewer, and must file an appeal of the IMR decision if they were not.
It is unfortunate that treating physicians and attorneys are thereby forced to spend time that is uncompensated. However, the benefit to the patient/client will often justify the inconvenience to the doctor and the attorney. Also, familiarity with the MTUS requirements for the more common treatment requests will make it easier for treaters and attorneys to streamline the process.
The PDF for Bowen is located at the end of this post.
Practitioners should check the subsequent history of the case before citing to it.
Any information or opinions contained in this commentary are not necessarily endorsed by LexisNexis® or its affiliates.
© Copyright 2019 LexisNexis. All rights reserved.
How Kafka like is this scenario: 1) Sometime prior to the date of an Administrative Director's IMR decision November 23, 2015, upholding a UR denial of a treating Physician's RFA for Norco probably around September 15 - October 10, 2015 which was prescribed so that the applicant could have specific functional improvement, in order to enhance his activities of daily living like reaching, lifting, grabbing, holding and pulling; 2) an ALJ issues a decision on September 9, 2016 ordering IMR to do it all over again, de novo as per statute and rules which along with this so called appeals process also provides that the UR is only good for one year and then the physician may renew the request through a new RFA, and, 3) The Board Issues it's Decision on Reconsideration on February 20, 2019, affirming the ALJ and the applicant is now to be in the same place he would have been a year and a half earlier had the attorney(s) for the applicant, defendant, IMR(?), and, the ALJ, and the Board just sat around and played pinochle for a year or more, (may God bless all their well-meaning hearts), simply tiff, isn't it, what a wonderful marshaling of resources, isn't it? And, since it is the Inland Empire (I guess, since the applicants industrial treating Dr. was David Wood), the applicant probably went to a Medi-Cal, I.E.H.P. doctor who told her that they could not prescribe anything to help her because it is an open workers' compensation case. I am just so happy I am still in this noble field of law. John Bush Hemet. Geesh!