California: Noteworthy Independent Medical Review (IMR) Decisions (May 2024)

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+. 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, among other topics, surgical procedures involving the knees, lumbar spine and nose, the use of nerve condition studies as diagnostic tools, the MTUS guidelines applicable to requests for home health care, and the criteria that must be met to support recommended work conditioning and weight loss programs. A particularly interesting decision involves an injured employee whose weight gain and related physical problems resulted from post-COVID syndrome.

ELECTRODIAGNOSTIC STUDIES

■ 89 Cal. Comp. Cases 179. Electrodiagnostic Studies—Upper and Lower Extremities—Applicant, 54 years old, suffered an industrial injury on 9/1/2017 and sought authorization for electrodiagnostic/nerve conductions studies (EMG/NCS) of the upper and lower extremities. She had previously undergone a lumbar spine MRI, which revealed mild disc bulges at L4-S1, and a cervical MRI which showed moderate C6-C7 disc protrusion and foraminal stenosis at that level. The treating physician requested EMG/NCS to assess applicant’s chronic neck and low back pain in addition to her upper and lower extremity symptoms, and to determine if epidural steroid injections could benefit. UR non-certified the treatment request, citing the MTUS 2017 chronic pain guidelines. The IMR reviewer overturned the UR denial of treatment based on the MTUS 2020 guidelines for radicular pain related to low back disorders, and the MTUS 2019 guidelines for cervicothoracic pain. Under these guidelines, EMG studies are recommended where a CT or MRI is equivocal and there is ongoing pain suggesting that a neurologic condition other than or in addition to radiculopathy may be present. The medical documentation in this case indicated that applicant was undergoing treatment for symptoms involving both her upper and lower extremities and suffered from an intervertebral disc disorder with radiculopathy. Her lower extremity pain rated at 3-7/10. Because the treating physician provided documentation of ongoing physical exam findings and positive special testing which indicated that neurologic conditions other than radiculopathy may be present in addition to radiculopathy, the IMR reviewer concluded that the request for EMG/NCS of the bilateral upper and lower extremities was medically necessary based on the MTUS guidelines. [LexisNexis Commentary: This IMR shows that even in the absence of surgery (injections are the proposed next step in treatment here), electrodiagnostic studies can be recommended “to differentiate between cervical radiculopathy and entrapment” or “to assist in securing a firm diagnosis” as well as “to objectively secure a diagnosis of carpal tunnel syndrome prior to surgical release” (ACOEM Hand, Wrist, and Forearm Disorders Guideline, June 28, 2023, p. 34, last paragraph).]

■ 89 Cal. Comp. Cases 174. Electrodiagnostic Studies—Upper Extremities—Applicant, 35 years old, suffered an industrial injury on 10/27/2017. In a telemedicine progress report dated 1/23/2023, applicant reported head, face, spine, and upper and lower extremity symptoms. She further reported neck spasms and numbness and tingling in the arms upon awakening in the morning. The symptoms were constant, and included aching, tingling, numbness, burning, and weakness, radiating into the arms, hands, wrists, and fingers. According to applicant, the symptoms markedly interfered with her functioning. Applicant’s treating physician requested authorization for electrodiagnostic/nerve conductions studies (EMG/NCS) of the bilateral upper extremities. UR non-certified the request, citing the MTUS 2019 cervical and thoracic spine guidelines, and the non-MTUS ODG. The IMR reviewer overturned the UR denial of treatment based on the MTUS 2019 cervical and thoracic guidelines for radicular pain. Under these guidelines, electrodiagnostic studies are recommended where a CT or MRI is equivocal and there is ongoing upper extremity pain that raises the question about whether there may be identifiable neurological compromise (i.e., upper extremity symptoms consistent with radiculopathy, spinal stenosis, peripheral neuropathy, etc.). The IMR reviewer observed that applicant had pain, weakness, and numbness over her upper extremities. An MRI showed multilevel degenerative disc and joint disease with the potential of mild stenosis. The IMR reviewer noted that electrodiagnostic studies may help further evaluate regions of focal nerve impingement over the cervical spine and rule out additional peripheral nerve entrapment concerns. As such, the IMR reviewer concluded that the current request fell within the guideline criteria for EMG/NCS study and was, therefore, medically necessary. [LexisNexis Commentary: The IMR reviewer makes clear that something as slight as a report of symptoms by telemedicine, paired with the right medical history, can justify electrodiagnostic studies under MTUS/ACOEM, which recommends quality studies “to differentiate between cervical radiculopathy and entrapment” or “to assist in securing a firm diagnosis” (ACOEM Hand, Wrist, and Forearm Disorders Guideline, June 28, 2023, p. 34, last paragraph).]

HOME HEALTH CARE SERVICES

■ 89 Cal. Comp. Cases 188. Home Health Care Services—Traumatic Brain Injury—Applicant, 34 years old, suffered an industrial traumatic brain injury on 9/20/2021, resulting in significant physical and cognitive symptoms. On 5/11/2023, applicant’s treating physician requested authorization for home healthcare services, 12 hours per day, seven days per week, for 60 days (totaling 720 hours). UR denied the request. However, the IMR reviewer found that the requested home healthcare was medically necessary and appropriate based on the MTUS 2022 home healthcare services guidelines, which recommend home healthcare services when an injured worker needs assistance with ADLs or is unable to leave home without major assistance (including use of a wheelchair) or leaving home is not medically advised because of the industrial injury. The IMR reviewer noted that applicant’s symptoms included lapses in memory, attention and judgement, severe cognitive impairment, impaired decision making, blurred vision, dizziness, severe imbalance leading to multiple falls, difficulty judging distances and rising from a sitting position, severely altered gait, weakness in the upper extremities, neck and bilateral hands, and pain in the arms, wrists and hands with numbness and tingling. Due to his symptoms, applicant was unable to drive, was at risk of falling, required use of a manual wheelchair, and needed assistance with most ADLs. Given these circumstances, the IMR reviewer concluded that the requested home healthcare services were supported by the applicable MTUS criteria. [LexisNexis Commentary: The MTUS/ACOEM Traumatic Brain Injury Guidelines have a section entitled “Home Healthcare” that states only: “See Initial Approaches to Treatment Guideline” (ACOEM Traumatic Brain Injury Guidelines, November 15, 2017, p. 225, paragraph 2). Fortunately, the ACOEM Initial Approaches to Treatment does provide criteria that can be applied beyond short-term needs, acknowledging that home healthcare is “selectively recommended to prevent (re)hospitalization, to overcome deficits in activities of daily living (ADLs), and/or to provide nursing, therapy and/or supportive care services for those who would otherwise require inpatient care” (ACOEM Initial Approaches to Treatment, October 22, 2021, p. 16, last paragraph).]

■ 88 Cal. Comp. Cases 1225. Home Health Care Services—Spine Injury—Applicant, 76 years old, suffered an industrial lumbar spine injury on 6/17/96. He reported insomnia and low back pain which radiated down his legs, with numbness, tingling, and muscle weakness. He rated the pain at 3/10 with medications and 6/10 without medications. Applicant reported episodes of incapacitating radicular pain and weakness in his left leg, nearly causing him to fall. A physical examination of the lumbar spine revealed severely decreased range of motion and decreased leg strength. Applicant’s treating physician noted that applicant needed home care assistance, as he had difficulty managing ADLs due to pain and functional limitations from his injury. However, the physician’s request for a home assistance evaluation was denied by UR. The IMR reviewer overturned the UR denial based on the 2022 MTUS guidelines for home health care services. Among other criteria, the applicable guidelines recommend home health care services if a patient requires assistance with ADLs, is unable to leave the home without major assistance (e.g., requiring wheelchair, walker, 3rd party transportation), leaving home is not medically advised, and/or the patient is normally unable to leave home and leaving home is a major effort. The IMR reviewer noted that applicant was near total incapacitation. He was homebound and often bedbound, incapable of performing self-care, feeding, and many other ADLs. There was documentation of a recent fall with loss of consciousness, and reports of almost falling on several additional occasions. The IMR reviewer concluded that applicant had severe physical limitations and could not safely leave the house without assistance, such that a home assistance evaluation was medically necessary under the applicable MTUS criteria. [LexisNexis Commentary: This IMR decision reminds readers that under the MTUS/ACOEM guidelines, a home evaluation is necessary to develop the home health care treatment plan. UR’s denial of such an evaluation in this case, where applicant was almost totally incapacitated, homebound and unable to perform many ADLs, underscores the necessity of IMR.]

NON-STEROIDAL ANTI-INFLAMMATORY DRUGS

■ 89 Cal. Comp. Cases 192. Topical Non-Steroidal Anti-Inflammatory Drugs (NSAIDs)—Diclofenac—Chronic Pain—Applicant, 58 years old, suffered an industrial injury on 5/6/2008, and was undergoing treatment for lumbar radiculopathy. He had previously undergone conservative treatment and used oral pain medications, including Norco. In a 2023 telemedicine visit, applicant reported constant aching, cramping, shooting, and dull pain in the low back, rated at 4-8/10. The pain increased with cold temperatures, weather changes, rest, laying down, standing, and fatigue, and decreased with activity and massage. Applicant’s treating physician requested authorization for the NSAID Diclofenac 1% topical gel #120 grams to help reduce applicant’s pain. UR denied the treatment request. The IMR reviewer overturned the UR denial based on the MTUS 2021 guidelines for low back pain with radiculopathy, which recommend topical NSAIDs when more efficacious chronic pain treatments have previously been attempted, for conditions amenable to topical treatment where there is an intolerance or other contraindication for oral NSAID use, and for treatment of chronic persistent pain where the target tissue is superficially located and amenable to a topical agent. The IMR reviewer noted that applicant’s prior use of a topical NSAID had benefits without adverse effects and resulted in the reduction of oral pain medications, including NSAIDs and opioids. This was especially pertinent due to applicant’s chronic use of oral pain medications, placing him at an increased risk for gastrointestinal and other complications. Given that the use of a topical NSAID is recommended for pain by the guidelines and the target tissue in applicant’s case previously proved to be amenable to topical treatment, the IMR reviewer concluded that the treatment request was medically necessary under the applicable guidelines. [LexisNexis Commentary: The MTUS/ACOEM Chronic Pain Guidelines selectively recommend topical NSAIDs for chronic pain, and the ACOEM states at p. 295 that “Diclofenac 1.5% lotion T.I.D. was used in one quality trial.” If the use of a topical NSAID keeps an injured worker off opioid medication, it seems logical to authorize the medication.]

STATINS

■ 89 Cal. Comp. Cases 398. Statins—Atorvastatin—Hyperlipidemia—Applicant, 63 years old, suffered an industrial injury on 9/12/2018, and was undergoing treatment for hypertension, hyperlipidemia, traumatic brain and spinal cord injuries, sleep apnea, neurogenic bladder and bowel, atrial fibrillation, and chronic constipation. The treatment plan included a rehabilitation day program and continuation of various medications, including Atorvastatin. On 10/28/2021, applicant’s treating physician submitted a request for authorization for Atorvastatin 20mg #30 with one refill. UR denied the request, stating that there was no documentation regarding the efficacy of applicant’s prior Atorvastatin prescription and there were no lipid panel lab results reflected in the documentation submitted. The IMR reviewer noted that the MTUS/ACOEM guidelines do not address Atorvastatin for the treatment of hyperlipidemia, and the non-MTUS ODG only address the use of statins in diabetics. The IMR reviewer ultimately looked to other evidence-based guidelines, specifically the 2019 American College of Cardiology/American Heart Association Task Force on Clinical Practice Guidelines addressing primary prevention of cardiovascular disease, which recommend cardiovascular risk stratification in patients with high cholesterol. The guidelines also state that statin therapy is first-line treatment for primary prevention of atherosclerotic cardiovascular disease (ASCVD) in patients with elevated low-density lipoprotein cholesterol levels (190 mg/dL), those with diabetes who are 40 to 75 years of age, and those determined to be at sufficient ASCVD risk. The California MTUS/ACOEM guidelines on continuation of treatment/medication state that patients should be provided with limited medications and that the effects of the medication should be documented, with attention to objective and/or functional improvements. Although the medical reports submitted in this case noted that applicant was utilizing Atorvastatin for the management of hyperlipidemia, they did not provide cholesterol levels or indicate if a risk stratification for ASCVD was conducted and did not account for medication efficacy with prior use of Atorvastatin nor for failure of other statins. Also, there was no documentation of normal or stable blood lipid levels supported by laboratory testing to support the continuation of medication use. Under these circumstances, the IMR reviewer concluded that the treatment request was not medically necessary and upheld the UR denial. [LexisNexis Commentary: The focus of the IMR in this case is in the right place: the utilization guidelines for a prescription, and not whether the prescription is based on industrial causation or an admitted body part. The employer appears to acknowledge that applicant is treating hyperlipidemia on an industrial basis. The only question for IMR is whether the request for authorization is supported by the MTUS criteria, or in other sources of evidence using the medical evidence search sequence in 8 Cal. Code Reg. § 9792.21.1. Note, however, that the claims examiner is free to authorize the medication notwithstanding the UR noncertification upheld by IMR and may want to do so if the benefit of lowering the risk of potentially expensive compensable consequences outweighs the relatively low cost of statins.]

SURGICAL PROCEDURES

■ 89 Cal. Comp. Cases 299. Surgical Procedures—Right Knee Arthroplasty—Applicant, 53 years old, suffered an industrial injury on 6/17/2022, resulting in a fractured fibula. A 9/26/2023 MRI revealed severe degenerative changes involving applicant’s right knee. Applicant complained of right knee pain and used a cane and knee brace. A physical examination revealed global mild tenderness, full range of motion and an antalgic gait. Applicant’s medical provider requested authorization for right knee arthroplasty. UR denied the requested surgery. The IMR reviewer overturned the UR non-certification, citing the MTUS 2020 guidelines for the surgical treatment of osteoarthrosis of the knee. The guidelines strongly recommend surgical intervention in cases of (1) severe knee degenerative joint disease that is unresponsive to non-operative treatment, (2) sufficient symptoms and functional limitations, including impairments in ADLs or occupational tasks, and (3) failure to successfully manage symptoms after a prolonged period of a conservative management plan. The guidelines also state that “particular attention should be paid to preoperative medical fitness and psychological fortitude.” The IMR reviewer concluded that applicant met the above criteria, where applicant complained of ongoing knee pain, x-rays and an MRI showed severe degenerative changes and conservative treatment, including bracing, physical therapy and acupuncture, had failed. Accordingly, the right total knee arthroplasty was determined to be medically necessary. [LexisNexis Commentary: Applicant in this case clearly appears to have met the MTUS/ACOEM criteria to support right knee arthroplasty, and the IMR reviewer was correct to find surgical intervention medically necessary. It would be interesting to know how the UR reviewer distinguished applicant’s case history in order to justify non-certification. Of some note, the IMR decision does not address applicant’s limitations in ADLs, although given the apparent severity of his condition, some limitations can be presumed.]

■ 89 Cal. Comp. Cases 295. Surgical Procedures—Lumbar Facet Joint Radiofrequency Ablation—Applicant, 69 years old, suffered an industrial injury on 10/3/97. According to the medical record, applicant was diagnosed with lumbar spondylosis and, as of 9/20/2023, was not working. Applicant reported low back pain radiating into her lower extremities rated at 7/10 and had limited range of motion. Applicant’s medical provider requested authorization for radiofrequency ablation of the bilateral L4, L5 and S1 levels with fluoroscopic guidance. UR denied the request. The IMR reviewer overturned the UR denial, citing the MTUS 2021 guidelines for low back pain with radiculopathy. The guidelines do not generally recommend radiofrequency or ablation for chronic low back pain, even for patients who have failed conservative treatment. However, the guidelines conditionally provide that it is reasonable to attempt a second ablation after 26 weeks in patients who had greater than 80 percent improvement in pain after the initial procedure for at least eight weeks, with a late return of pain. The IMR reviewer noted that applicant had a prior laminectomy, with changes at L4-5, moderate to severe multilevel degenerative changes, including facet arthropathy most severe at the L3-4 and L4-5 levels, and progressive axial low back pain with functional limitations despite exhausting various conservative treatment strategies. The IMR reviewer also observed that applicant underwent a previous radiofrequency ablation at L3-4, L4-5 and L5-S1 in 2013 which provided at least 50 percent reduction in her symptoms. Applicant reported significant pain relief for several years after the 2013 procedure. Based on the circumstances noted above, the IMR reviewer concluded that the conditional recommendations for pursuing lumbar facet joint radiofrequency ablation were met, and that the requested treatment was medically necessary. [LexisNexis Commentary: The MTUS/ACOEM guidelines indicate that radiofrequency neurotomy or ablation is generally not recommended for chronic low back pain or other lumbar spinal conditions. However, this case is a useful reminder that there are exceptions to the general guideline recommendations and room for discretion in applying the guidelines. The ablation requested by applicant’s doctor is a relatively simple procedure, with minimal recovery time and few side effects. There is little downside in approving the procedure, especially given its potential to provide applicant with years of pain relief.]

■ 89 Cal. Comp. Cases 408. Surgical Procedures—Crooked Nose—Deviated Septum Repair—Applicant, 43 years old, sustained an industrial injury on 4/25/2022, and was undergoing treatment for nasal trauma. The injury resulted in a crooked nose and a deviated septum obstructing 20 percent of his left nasal airway, making it difficult to breathe. As of 8/4/2023, applicant was not working. Medications were not clearly documented. Applicant’s treating physician requested authorization for surgical repair of the deviated septum, with open reduction of the nasal fracture. UR denied the request. Noting that the MTUS/ACOEM did not address applicant’s condition, the IMR reviewer applied the non-MTUS ODG addressing rhinoplasty to overturn the UR denial of treatment. The ODG recommends surgical repair of the nose as a reconstructive procedure following facial trauma or to correct breathing problems or birth defects. Because the obstruction causing applicant’s crooked nose and difficulty breathing was structural rather than allergic, the IMR reviewer believed that conservative treatment was unlikely to be of benefit. The IMR reviewer cited to the American Academy of Otolaryngology Position Paper Clinical Indicators Septoplasty, which states that when the nasal septum is deformed, there is no medicine that will cause it to be straightened and surgery is the only option. The IMR reviewer observed that management of post-traumatic crooked nose often requires both a septoplasty and an osseous rhinoplasty to completely correct the airway and prevent recurrent deviation of the cartilage. In applicant’s case, the IMR reviewer found that successful correction of the nasal obstruction required both a septoplasty and a rhinoplasty. Based on the above factors, the IMR reviewer concluded that the treatment request was medically necessary. [LexisNexis Commentary: The IMR reviewer in this case provides a detailed explanation as to why surgery is necessary to correct applicant’s trauma-related deviated septum. Here, surgery was applicant’s only treatment option. The decision provides a useful reminder that the ODG should be searched for guidelines where the MTUS/ACOEM does not address a specific injury or condition.]

WEIGHT MANAGEMENT

■ 89 Cal. Comp. Cases 287. Weight Management Program—COVID-19 Syndrome—Applicant, 56 years old, contracted COVID-19 at her workplace in 2020, and developed post-COVID-19 syndrome. As of 10/2/2023, applicant was temporarily totally disabled. She gained approximately 30 pounds following her COVID-19 diagnosis, and suffered from lower extremity edema, exertional dyspnea, venous reflux, and borderline high blood pressure. Applicant reviewed various weight loss programs and ultimately selected a premium weight loss program that included access to workshops and personalized diet coaching. Overall, the plan consisted of customized science-backed nutrition plans designed to help applicant reach her goal weight. Applicant’s treating physician requested approval for 12 months of participation in the premium weight loss program, but the request was denied by UR. The IMR reviewer, relying on the 2017 chronic pain guidelines for fibromyalgia and the non-MTUS ODG for knee disorders, found the requested weight loss program medically necessary and overturned the UR denial of treatment. The IMR reviewer noted that the MTUS knee disorder guidelines strongly recommend weight loss for patients who are overweight or obese. Additionally, the MTUS chronic pain chapter addressing fibromyalgia recommends weight reduction for treatment of fibromyalgia. Here, the IMR reviewer found by analogy that applicant presented with weight gain in the aftermath of a COVID-19 infection. Her BMI was 31, and she had not returned to work. The IMR reviewer also noted that applicant had developed issues with exercise intolerance, exertional dyspnea, and venous reflux, all conditions which would improve with weight loss. The IMR reviewer concluded that participation in the weight loss program in question was indicated and appropriate in this context. [LexisNexis Commentary: This IMR opinion is interesting because even though the clinical case summary does not indicate a diagnosis of fibromyalgia, the IMR reviewer applies the MTUS/ACOEM chronic pain guideline’s recommendation of weight loss for that condition (at page 224) “by analogy.” This seems to be an appropriate use of MTUS/ACOEM, which are guidelines, and it seems unlikely that any reasonable analogy would  be challenged as “in excess of the administrative director’s powers” or “a plainly erroneous express or implied finding of fact” under Labor Code § 4610.6(h)(1) and (5). Note, the IMR decision mistakenly indicates that the UR cited no MTUS guidelines in support of its non-certification, and that “non-MTUS, ACOEM” was used instead. However, the ACOEM are in fact MTUS, as the MTUS guidelines incorporate the ACOEM.]

WORK CONDITIONING

■ 89 Cal. Comp. Cases 291. Work Conditioning Program—Chronic Pain—Applicant, 37 years old, suffered an industrial injury on 2/6/2021, and underwent arthroscopic left knee surgery in December 2022. On 8/14/2023, applicant returned to full duty with accommodations, but continued to experience left knee pain. Applicant’s doctor requested authorization for applicant to participate in 10 sessions of a work conditioning program, which UR denied. The IMR reviewer overturned the UR denial based on the 2017 MTUS chronic pain guidelines, which recommend work conditioning for the treatment of chronic pain in patients who remain off work or are on modified duty, have failed less costly interventions such as physical therapy, have stated a strong interest and expectation to return to work, are supervised by a physical or occupational therapist, and are either unable to return to work or are working below their expected level. The program itself must meet certain criteria and the employer must cooperate with the work conditioning treatment plan. In this case, the IMR reviewer noted that applicant was undergoing treatment for chronic left knee pain following  her left knee partial lateral meniscectomy. She had atrophy of her left lower extremity as compared to the right side and had some range of motion and strength deficits, despite completion of postoperative physical therapy. The IMR reviewer concluded that because applicant continued to experience significant deficits and she was to return to a physically demanding job, 10 sessions of a work conditioning program was reasonable and medically necessary. [LexisNexis Commentary: This decision provides a useful example of the application of the criteria that must be satisfied to support authorization of a work conditioning program. Although the IMR reviewer did not apply all eight of the criteria set forth in the MTUS/ACOEM chronic pain guidelines, p.337, the reviewer explained why work conditioning was reasonable and necessary in applicant’s case. Further, the ACOEM does not expressly state that all the criteria must be met to support the medical necessity of work conditioning.]

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