CALIFORNIA COMPENSATION CASES
Vol. 88, No. 5 May 2023
A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions...
By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board
In 2022 there were 7,490 wildfires in California. They burned 362,455 acres...
By Christopher Mahon
Should temporary workers be treated separately under workers’ compensation law due to additional employment and income risks they may incur after workplace injuries? A new study...
Here's a noteworthy panel decision where a family member conveyed essential information to the AME on behalf of the injured employee. The Lexis headnote is below.
CA - NOTEWORTHY PANEL DECISIONS...
Oakland, CA – Part II of a California Workers’ Compensation Institute (CWCI) research series on low- volume/high-cost drugs used to treat California injured workers identifies three Dermatological drugs...
LexisNexis has selected some recently issued noteworthy IMR decisions that illustrate the criteria that must be met to obtain authorization for a variety of different medical treatment modalities. LexisNexis Commentary for each selected IMR is provided below. Many of these IMR decisions were reprinted in California Compensation Cases, which can be accessed on Lexis Advance. Lexis Advance subscribers can access those particular decisions online.
The list discusses specific IMR opinions which explain how physicians should best apply treatment guidelines utilizing the “Medical Evidence Search Sequence” for the treatment of injured workers as set forth in 8 Cal. Code Reg. § 9792.21.1, and include the MTUS at 8 Cal. Code Reg. § 9792.21.1(d)(1), other medical treatment guidelines such as the ACOEM and ODG at 8 Cal. Code Reg. § 9792.21.1(d)(2) and peer reviewed studies at 8 Cal. Code Reg. § 9792.21.1(d)(3). These selected IMR decisions address the medical necessity of home healthcare in situations where the injured worker is homebound, the use of opioid medication to improve pain and functionality, and the criteria that must be satisfied to support the use of sympathetic blocks to treat chronic regional pain syndrome. A number of the IMRs illustrate the importance of providing UR with sufficient documentation to justify the requested treatment, as failure to do so could result in denial of necessary treatment.
■ 87 Cal. Comp. Cases 168. Home Healthcare—Physical 33Therapy and Home Health Aide—Applicant, 64 years old, suffered an industrial injury on 6/21/2020. She underwent treatment for a left hip sprain and osteoarthritis. Applicant had chronic pain, antalgic gait, and a limited range of motion in her hip. Her treating physician ultimately recommended, among other things, total left hip replacement surgery, six sessions of postoperative, home-based physical therapy, and six sessions with a home health aide. UR non-certified the requests for physical therapy and a home health aide, citing the non-MTUS ODG guidelines. The IMR reviewer overturned UR’s denial of the requested treatment, finding that both treatment requests were supported by the applicable MTUS/ACOEM guidelines and were medically necessary. With respect to the request for physical therapy, the IMR reviewer relied on the 2019 MTUS/ACOEM guidelines for the rehabilitation of hip and groin disorders, which recommend physical therapy following arthroplasty, particularly for patients with an unsteady gait, and support upwards of 18 physical therapy sessions in the postoperative period. As to the request for a home health aide, the IMR reviewer cited the MTUS Initial Approaches to Treatment 2017 Guidelines applicable to home healthcare services. The MTUS guidelines state, as the rationale for recommending home healthcare in some circumstances, that although there is no quality evidence of efficacy of home healthcare in workers’ compensation patients, there is experience with efficacy of home healthcare in general. Additionally, home healthcare is not invasive, has negligible adverse effects, and is high cost, but in the absence of plausible alternatives is selectively recommended following major surgical procedures, especially where a patient is temporarily homebound. The IMR reviewer noted that total hip arthroplasty is a major surgical procedure, and that in the initial postoperative period applicant will likely require major assistance to leave her home. Therefore, the UR expert concluded that in addition to physical therapy, a home health aide was medically necessary in this case.
LexisNexis Commentary: This IMR decision provides an example of a case in which UR relied on secondary sources, i.e., ODG guidelines, to non-certify requested treatment notwithstanding applicable MTUS guidelines supporting the treatment requests. The IMR reviewer cited the MTUS guidelines as the basis for overturning the UR non-certifications.
■ 87 Cal. Comp. Cases 162. Home Healthcare—Licensed Vocational Nurse and Home Health Aide—Applicant, 75 years old, suffered an industrial injury on 8/25/2020, rendering him quadriplegic. He experiences chronic pain, utilizes a motorized chair and is unable to perform ADLs. His wife and daughter indicate they are unable to keep up with his needs. Applicant’s treating physician requested authorization to extend applicant’s home healthcare to provide LVN care visits for 12 hours per day/six days per week for three months, for a total of 24 sessions, and three sessions with a home health aide. UR denied both treatment requests. The IMR reviewer overturned the UR non-certifications based on the MTUS Initial Approaches to Treatment 2017 Guidelines applicable to home healthcare. The MTUS guidelines state, as a rationale for recommending home healthcare in some circumstances, that although there is no quality evidence of efficacy of home healthcare in workers’ compensation patients, there is experience with efficacy of home healthcare in general. Additionally, home healthcare is not invasive, has negligible adverse effects, and is high cost, but in the absence of plausible alternatives is selectively recommended for individuals with deficits in ADLs, especially those who are unable to leave home without major assistance. Home healthcare may also be necessary to prevent inpatient hospitalization. Here, the IMR reviewer noted, a neurological examination demonstrated that applicant is quadriplegic, putting him at increased risk of decubitus ulcers and DVT, both serious conditions that could result in hospitalization. Additionally, applicant is in a wheelchair and homebound. Under these circumstances, the IMR reviewer concluded that the requested treatment is supported by the applicable MTUS guidelines and is medically necessary.
LexisNexis Commentary: This IMR demonstrates that notwithstanding MTUS guidelines clearly indicating that certain treatment is medically necessary, UR may still misapply the guidelines to non-certify recommended treatment. In this case, the chronic nature of applicant’s condition suggested that no further UR was necessary to extend his home care, per Patterson v. The Oaks Farm (2014) 79 Cal. Comp. Cases 910 (Appeals Board significant panel decision), and that the requested treatment was medically necessary.
INPATIENT BOARD AND CARE
■ 87 Cal. Comp. Cases 152. Inpatient Board and Care—Applicant, 54 years old, suffered an industrial injury on 4/25/2020 and sought authorization for two months of inpatient board and care while undergoing various forms of dental treatment. The documentation indicated that applicant needed boarding care to “enhance his physical and emotional wellbeing that he cannot provide for himself since he lived on his own.” There were minimal physical findings on examination. UR denied authorization for the treatment, citing the non-MTUS ODG guidelines for the knee and leg. The IMR reviewer upheld the UR non-certification based on the MTUS Traumatic Brain Injury 2017 Guidelines, which selectively recommended residential rehabilitation for treatment of TBI injured workers who demonstrate sufficient residual symptoms and/or signs of post TBI to necessitate ongoing outpatient treatment, either medical, physical therapy, occupational therapy, or other. Generally, these inpatient rehabilitation programs are used for patients with more numerous impairments, an inability to return to home unassisted, and/or greater numbers and magnitudes of mismatch between current abilities and ADLs, work and cognitive abilities, and physical demands. The IMR expert found that the documentation submitted in this case did not support a medical necessity for board, given the lack of physical findings and no showing that applicant had cognitive deficits. As such, the IMR reviewer concluded that the request for two months of inpatient board and care was not medically necessary.
LexisNexis Commentary: This IMR decision provides helpful guidance regarding the evidence necessary to support a request for inpatient board and care. The decision demonstrates that a request for this type of care requires a showing of some physical or cognitive deficits affecting an injured worker’s ability to function. Simply stating that such treatment is necessary to “enhance the physical and emotional wellbeing” of a patient while undergoing medical treatment is insufficient to establish medical necessity.
■ 2021 Cal. Wrk. Comp. LEXIS 50. Opioid Medication—Oxycodone—Applicant, 62 years old, sustained an industrial spine injury on 7/15/2004, resulting in chronic pain and impaired function. According to the documentation, she was able to work for only two hours per day. In addition to surgery, which was unsuccessful, previous treatments applicant tried and failed included gabapentin, Lyrica and Cymbalta. Applicant has been taking Oxycodone since at least 1/28/2021. Although she rated her neck and back pain at a 7-8/10 with radiation to the upper and lower extremities while taking the Oxycodone, she reported greater than 50 percent pain relief and ability to function and perform ADLs with use of the medication. On 6/28/2021, applicant’s treating physician requested authorization for Oxycodone Hcl 15mg #90. The request was denied by UR. The IMR expert overturned the UR denial based on the criteria set forth in the MTUS Opioids 2017 Guidelines, which recommend use of an opioid trial to treat subacute or chronic severe pain if other treatments to improve pain and function have failed. Ongoing opioids treatment beyond the trial is dependent on the trial’s results. Here, the IMR expert noted that applicant was being treated for failed back surgery syndrome, and had radiculopathy in the cervical region, spondylosis without myelopathy or radiculopathy in the lumbosacral and cervicothoracic regions, and other, unspecified, cervical disc displacement. The IMR expert found sufficient documentation of improved ADL functionality with use of Oxycodone, along with consistent measures of opiate surveillance per the MTUS guidelines, to establish the medical necessity for continued use of the medication. The IMR reviewer emphasized that the determination was made based on the substantive treatment request for Oxycodone without regard to the telehealth component, noting that whether the treatment may be delivered via telehealth as requested should be guided by the health care provider and the recommendations regarding telehealth as set forth in the MTUS and the state and local public health COVID-19 pandemic directives.
LexisNexis Commentary: The ACOEM guidelines, incorporated by the MTUS, 8 Cal. Code Reg. § 9792.24.4, recommend weaning or tapering of opioids only in situations that do not apply in this case, such as where lost function has been essentially recovered, or where there is a lack of any functional improvement, adverse effects, or the dosage is over 50mg MED. Accordingly, the IMR reviewer was correct to overturn the UR denial of the requested treatment in this case if the denial was based on the lack of a tapering plan. The IMR reviewer found the documentation of improved function and the showing of appropriate surveillance sufficient to support the medical necessity of the opioids per the MTUS guideline criteria.
■ 2021 Cal. Wrk. Comp. LEXIS 52. Opioid Medication—Norco—Applicant, 55 years old, sustained an industrial injury on 11/7/2004, and developed a chronic pain syndrome including low back pain with radiculopathy, spondylosis, and muscle spasms. He reported constant pain, rated at 7/10, that affected his ability to sleep. Applicant’s medications included Norco since at least 1/26/2021, tramadol, Celebrex, and baclofen. His treating physician requested authorization for Norco 10/325mg #90, which UR denied on 8/5/2021. The IMR expert upheld UR’s non-certification, noting that there was no objective pain and functional improvement with applicant’s previous use of Norco 10/325mg #90, i.e., no objective documentation to substantiate the use of the requested medication nor evidence of measurable, documented functional improvement in specific ADLs to substantiate ongoing use. Without a showing of improved pain and function, the MTUS Opioids 2017 Guideline criteria for continuation of opioid treatment were not met, and the requested Norco treatment was not medically necessary. The IMR reviewer emphasized that the IMR decision addressed the medical necessity of opioids as they had been prescribed to applicant and should not be interpreted as a recommendation to stop long-term opioids abruptly. Additionally, the IMR reviewer advised applicant to speak with his treating physician regarding the most appropriate method for weaning based on the applicable guidelines.
LexisNexis Commentary: This IMR serves as a reminder to physicians to clearly document in their RFAs the medical necessity of recommended treatment consistent with the applicable treatment guidelines. Additionally, the IMR reviewer in this case noted the fact that an appropriate weaning protocol must be followed per the MTUS guidelines despite denial of the treatment request. In order to put a weaning plan in place, the claims adjuster should send a weaning request to the PTP who, in turn, can recommend a tapering protocol per the MTUS guidelines. After a weaning plan is put in place based on the PTP’s recommendations, the insurance carrier should pay for the requested medications during the tapering process.
■ 2021 Cal. Wrk. Comp. LEXIS 51. Steroid Injections—Lumbar Sympathetic Block—Applicant, 39 years old, suffered an industrial injury on 2/4/2020 and subsequently underwent treatment for a right lateral malleolar fracture and CRPS of the right foot and ankle. Prior treatment included surgery, physical therapy, and a lumbar sympathetic block on 5/14/2021 which decreased applicant’s pain from 9/10 to 2/10 for two days, before the pain returned to baseline. Medications included gabapentin with 30 percent decrease in pain and improved function and sleep. The treatment plan included a series of right sided lumbar sympathetic blocks in conjunction with physical therapy for treatment of CRPS of the right lower extremity, a refill of gabapentin and a home exercise program. Applicant’s treating physician submitted an RFA dated 6/10/2021 for right sided lumbar sympathetic block #3 and physical therapy twice per week for four weeks for the right foot and ankle. The request was non-certified by UR based on the MTUS Chronic Pain 2017 Guidelines for the treatment of CRPS. Noting that the MTUS/ACOEM does not contain specific criteria for the use of sympathetic blocks for CRPS, the IMR reviewer relied on the non-MTUS ODG criteria to assess medical necessity. Although the ODG does not recommend sympathetic blocks for pain due to a lack of quality studies, these guidelines allow the blocks in conjunction with physical or occupational therapy as a last option if certain specified conditions are met, including objective findings of CRPS, unresponsiveness to other more conservative treatments, and a positive response to diagnostic blocks. Here, the IMR reviewer noted, there was documentation of symptoms/findings suggestive of CRPS. Also, applicant had a prior block with significant pain relief and functional improvement for 2 days. Based on these observations and the fact that the provider requested sympathetic blocks in conjunction with physical therapy, the IMR reviewer concluded that the requested lumbar sympathetic block was medically necessary and overturned the UR non-certification.
LexisNexis Commentary: The ACOEM guidelines applicable to low back disorders, incorporated by the MTUS, do not specifically address lumbar sympathetic blocks. The ODG appears to disfavor use of the sympathetic blocks to treat pain but approves the treatment as a last resort under specified conditions. The IMR reviewer in this matter believed that applicant’s significant pain reduction and functional improvement for a period of two days following an injection was enough to satisfy the criteria, indicating that IMR reviewers have some degree of discretion in applying the evidence-based medical guidelines. This IMR decision clearly details the criteria for approval of a sympathetic block per the ODG.
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