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Independent Medical Review: A New Wave of Litigation in California

June 16, 2014 (5 min read)

Recent noteworthy panel decisions show that the applicant would be wise to present all relevant medical reports and records, and citations to the MTUS, ACOEM, ODG, or other nationally accepted medical standards to the IMR reviewer, and that when a material mistake of fact occurs during the IMR process, all the WCJ can do is order the matter back to a different IMR reviewer

In the first noteworthy panel decision, Andronico v. La Rocca Seafood, Inc., the Appeals Board rescinded a WCJ’s finding that an applicant/delivery driver with 7/3/2013 admitted industrial injury to his neck, back, left shoulder, left elbow, and head, was entitled to further medical care, including spinal surgery recommended by his treating physician, and returned the matter to the WCJ for development of the record by the treating physician regarding the requested surgery. The Appeals Board found that, contrary to the WCJ’s determination that utilization review (UR) was defective due to the UR physician’s lack of proper qualifications under Labor Code § 4610(e), the UR physician was qualified, as an orthopedic surgeon, to make a determination regarding back surgery. However, his UR denial was otherwise defective because the physician, in concluding that conservative treatment options needed to be considered prior to considering surgery, failed to address the portion of applicant’s medical history that was directly relevant to the requested treatment as he did not consider an earlier UR report issued by a different physician indicating that “[f]urther supervised therapy is not medically necessary at this point.” The Appeals Board held that this defect in the UR report was the type of “material procedural defect that undermines the integrity of a UR determination” as contemplated in Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 313 (Appeals Board en banc opinion). Based on the material defect in UR, the treating physician’s medical treatment request is not subject to independent medical review (IMR) but rather is required to be determined by the Appeals Board based on substantial evidence, with applicant having the burden of proving that the requested treatment is reasonably required. Furthermore, additional information is needed from the treating physician regarding the specific surgery recommended (two-level disc replacement arthroplasty) before the reasonableness and necessity of the surgery can be determined. See the Andronico noteworthy panel decision.

In the second noteworthy panel decision, Hayworth v. KCI Holdings USA, Inc., the Appeals Board, rescinding the WCJ’s finding, held that an independent medical review (IMR) determination addressing the treating physician’s treatment request for applicant/crane technician’s 8/30/2010 admitted neck and spine injury, was not issued in conformity with Labor Code § 4610.5, when the IMR determination, by its own terms, evaluated the treating physician’s request for authorization as involving “facet injections of cortisone and lidocaine,” but the treating physician expressly stated in his request that he sought authorization for “left dorsal medial branch block injection,” which the Appeals Board found was plainly different than “facet injections” evaluated by the IMR reviewer. The Appeals Board concluded that because the IMR determination, on its face, was based on a plainly erroneous finding of fact as a matter of ordinary knowledge and not expert opinion, as described in Labor Code § 4610.6(h)(5) (setting forth bases for appealing IMR determinations to WCAB), the IMR determination must be set aside. Because the IMR determination was reversed, pursuant to Labor Code § 4610.6(i) the dispute must be submitted to a different IMR organization or, if a different IMR organization is not available, to a different reviewer in the original IMR organization. See the Hayworth noteworthy panel decision.

Commentary by Robert G. Rassp, Esq., Editor-in-Chief of Rassp & Herlick, California Workers’ Compensation Law:

These cases represent the new wave of litigation that was created by enactment of the IMR provisions in Labor Code 4610.5 and the already existing UR process of Section 4610. The original intent of these provisions was to reduce friction in the workers’ compensation system and to control medical treatment costs. The opposite has occurred in spite of some self-insured employers saying how much money they have saved in unnecessary medical costs. However, the studies that are cited to support this assertion do not account for medical treatment costs that are incurred by injured workers who have health insurance and are able to receive community standards of care outside the workers’ compensation system.

For years, we have seen the gamesmanship that occurs in the UR process — where relevant or pertinent medical records are not sent by the claims administrators to the UR reviewer, the UR reviewer is not qualified to review a request for authorization for treatment, the UR reviewer cherry picks studies that support denial of treatment and ignores studies that support a treatment modality, or other material defects in the UR process.

Now we are also seeing what occurs when there is a material mistake of fact that occurs during the IMR process — all the WCJ can do is order the matter back to a different IMR reviewer. The WCJs were told by management that there is no other IMRO to send a case to so all the judges can do is order a matter back to Maximus for a newly assigned reviewer.

Dubon is being reconsidered by the WCAB at SCIF’s request and even with a new WCAB Commissioner on board, it is doubtful the WCAB will change its position on its decision in Dubon. Meanwhile, the DWC Medical Unit has proposed changes in the MTUS which includes a whole new definition of “evidence based medicine” that mandates taking into account additional factors such as the physician’s clinical judgment and patient values (also known as individualized or personalized medicine). Attorneys who practice workers’ compensation law now have to become familiar with the MTUS, current versions of ACOEM and ODG, and learn how to prosecute or defend a Dubon challenge since there are two burdens of proof by the applicant — first, that there is a material flaw in the UR process and, second, that the requested medical treatment follows the MTUS and weight of evidence.

A word to the wise is that if you really want an injured worker to receive the requested treatment, the burden is on the applicant to present all relevant medical reports and records, and citations to the MTUS, ACOEM, ODG, or other nationally accepted medical standards to the IMR reviewer, or else it is too late.

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