Karen C. Yotis, Esq., Feature Resident Columnist of the LexisNexis Workers’ Compensation eNewsletter, provides insights into workplace issues and the nuts and bolts of the workers' comp world.
Utilization Review and Independent Medical Review are heavily laden concepts that have caused big doses of controversy to be served up lately in California. Tied in with the divisive passage (and current laborious implementation, pun intended) of SB 863, the big dilemma that has been building comes in the context of fashioning a process to use in the event that the new UR mandated under SB 863 is defective. The WCAB has now addressed the defective UR issue head-on in Jose Dubon v. World Restoration Inc. and SCIF. But instead of preventing the UR procedural impasse from creating further roadblocks to medical treatment for injured workers, an en banc WCAB may have instead brought the cauldron of UR/IMR brew to a full boil.
CONSIDER THE FACTS
Dubon is the one where a UR physician determined that an injured worker’s spinal surgery was not medically necessary, even though the records existed to fully support the request. Jose Dubon’s doctors had been considering surgery for three years, had exhausted conservative treatments, and had obtained the requisite EMG/NCV and other diagnostic studies to support their surgical recommendation. To be fair, it’s important to remember that the UR doctor received none of these records from the claims adjuster, so the UR decision appeared to be based on the very lack of documentation that the claims adjuster most certainly possessed.
On these facts, the WCJ determined that the UR decision denying Dubon’s spinal surgery was defective, but that the court lacked jurisdiction to rule on medical necessity because the correct avenue of review was through the IMR process. The WCAB espoused a very different view and found that the defective UR decision was invalid because the UR physician failed to review Dubon’s complete medical file and examine all of the relevant medical records in it. As a result of the UR physician’s critical error, the WCAB held that it had jurisdiction to determine the medical necessity of the spinal surgery requested for Dubon.
CARRIERS UP IN ARMS
Given the strong interests that exist on both sides of the UR/IMR argument, the blogosphere has been awash in opinion pieces. Carriers of course are feeling the breeze from an en banc strike three.
Among the group of Dubon detractors is Richard M. Jacobsmeyer, who recently posted an article in this eNewsletter which argued that Dubon “is predictably going to wreak havoc with the medical treatment system in the workers’ compensation system, encourage and create substantial additional litigation and foment uncertainty in every challenged UR decision at the W.C.A.B.” Jacobsmeyer’s piece went on to state that Dubon “also evidences a complete lack of understanding of both the actual workings of Utilization Review and a failure to consider the practical impact of the decision.” Jacobsmeyer criticized the WCAB’s holding as being “cribbed together in a mish mash of misstated statutory and regulatory language taken both out of context as well as misquoted.” In addition to claiming that the specific holding in Dubon “will effectively make virtually every UR decision subject to judicial review at the WCAB, Jacobsmeyer also deemed problematic “the W.C.A.B.’s creation of a statutory obligation for the claims administrator—that simply is not in the statute and is impractical based on the remainder of the statutory scheme.”
After outlining the implications of the WCAB’s expectation that claims administrators (1) be made aware of a Request for Authorization, (2) decide upon the relevancy of available medical reports, and (3) copy/send those records to a UR vendor in time for the UR decision to issue within five business days, Jacobsmeyer wondered aloud: “are they NUTS?”
THERE ARE ALWAYS TWO SIDES
Of course there are others who state (with equally strong conviction) that the WCAB hit one out of the park in Dubon. As with other columns, I collaborated with my colleague Robin E. Kobayashi, the editor of this LexisNexis Workers’ Compensation eNewsletter California Edition, by reaching out to applicants’ attorneys to learn what that segment of the community was thinking. Specifically, we wanted to know their views on Jacobsmeyer’s prediction that Dubon would wreak havoc on the California workers’ compensation medical treatment system. We also asked whether their injured worker clients would have a better chance of getting medical treatment after Dubon. Our group of workers’ advocate thought leaders included Melissa C. Brown [Farrell, Fraulob & Brown], Julius Young [Boxer Gerson], Clint W. Feddersen [Rowen, Gurvey & Win], and Francis V. Clifford [Jones, Clifford, Johnson & Johnson].
THE HAVOC QUESTION
First off, no one glimpsed anything close to “havoc” in their crystal ball. Instead, the workers’ advocates shared the collective view that WCAB generally did the right thing in Dubon.
Young’s straight-forward answer was: “to argue that Dubon will wreak havoc on all UR cost containment efforts is simply not true. Dubon simply requires carriers and UR providers to abide by the statutory and regulatory requirements” that the WCAB cited in the case. Young referred to Jacobsmeyer’s concern as “overblown” and characterized Dubon as appearing “to have caused panic among some employer-side stakeholders who fear that it will be the downfall of California’s UR cost-containment scheme.”
Feddersen felt that Dubon merely “clarified what astute applicant and defense attorneys already knew: that the IMR process must now be used to resolve disputes over the medical issues in a UR determination, but the WCAB has jurisdiction over compliance with all statutory and regulatory requirements governing that process.”
Clifford didn’t think that Dubon would wreak any havoc at all. Instead, he stated that:
“What Dubon does is give the injured worker a way to backdoor the IMR process by using, for example the Utilization Review system, and finding some fault with that process which can be litigated at the WCAB. The applicant’s attorney will need to be more vigilant as UR denials come in, checking for timing issues, procedural compliance, etc., as that part of the system still remains with the jurisdiction of the Judges at the WCAB, and is appealable.”
Brown went so far as to call the decision “a blue-print for common sense claims adjusting and compliance with basic and well settled evidentiary rules: medical decisions which are based on an inadequate record are not substantial evidence.”
TO TREAT OR NOT TO TREAT
The injured worker stakeholders that responded to our questions about Dubon had divergent views about whether the decision will improve their clients’ chances of receiving medical treatment. In Brown’s opinion:
“There is no question that injured workers will benefit from this decision. Employers will also benefit if their insurance companies revisit their policy that every medical request be disputed through UR, a process that should only be used in select cases.”
Clifford espoused a very different point of view. He felt that with Dubon:
“We revert to form over substance issues and games of one-upmanship and ‘gotch ya’ which will lead to some additional medical treatment in some cases and no additional treatment in other cases where the insurance carrier complied correctly and timely in the entire process leading up to the IMR decision instead of allowing the judicial process to determine what is truly reasonable on a case-by-case basis as the WC system originally intended.”
Jacobsmeyer’s denunciation aside, the WCAB does not appear to be saying that every scrap of paper be submitted to the UR process when it concluded that an inadequate medical record is a material defect in the UR process. What the court actually said was:
“Review of sufficient medical records to determine the medical necessity of a treatment request and to disclose what those records are goes to the very core of a UR decision. [emphasis supplied] To allow these statutory and regulatory requirements to be inadvertently neglected or deliberately disregarded would render UR decisions unreliable, possibly flawed and ultimately would defeat the purpose of having UR at all, while at the same time adding an extra layer of delay to the medical treatment resolution process.” [citation omitted]
THE PROBLEM WITH THE BOTTOM LINE
Discussions about Dubon invariably involve disagreements about the practical impact of the decision. While Jacobsmeyer emphasized a host of impracticalities that Dubon now imposes upon claims administrators and UR vendors bound by the five-day time limit on reviews and determinations, Brown reminded us that:
“Decisions to deny or modify medical treatment requests are business decisions, which often appear devoid of rationality and common sense. The cost of UR and IMR all too often exceeds that of the requested medical treatment itself. This is particularly troublesome when the “disputed” treatment is nothing new; rather it is approval for medications or other modalities that have proved effective to cure or relieve the injury.”
UR of medical files in a case that spans years of treatment may indeed be time consuming and expensive, but as Young pointed out in his comments:
“That is required by the statutes and regulations. It’s also fair. And after all, California has a constitutionally-required workers’ comp system, so concepts of fairness and justice do matter.”
On the other hand, Clifford actually agreed with Jacobsmeyer with respect to what he called the “Dubon Process,” which he claimed “will create significant additional litigation, increase costs and cause delays in not only treatment, but in overall resolution of most all litigated claims.”
Dubon will definitely initiate change management among carriers and payers. This was, of course, Jacobsmeyer’s loudest complaint. Most of our workers advocates were more matter-of-fact about taking these changes in stride. As Young explained:
“The decision may dictate that some carriers readjust their internal UR procedures, particularly where the treatment is requested in the context of a long line of treatment, tests and evaluations. Carriers may need to devise more efficient ways of providing contextual documentation to UR organizations. UR organizations may need to request more information from carriers and providers before making decisions. Payers may want to evaluate whether they are overusing UR, since nothing requires payers to do an external UR review in every instance.”
Dubon most definitely teaches the lesson that there can be consequences when the UR determination process rests upon financial rather than, well, constitutional motivators.
A WAY FORWARD
The issues surrounding UR and IMR are far from settled. As Young pointed out:
“Cost containment is not dead, but it may need to change. Policymakers may want to concentrate on having less UR but higher-quality UR. With higher-quality UR, there may be less pressure on the IMR system.”
Clifford took things one step further when he stated:
“What is really happening here is the IMR system takes away judicial oversight which is just wrong. I believe it is a violation of injured workers rights and that there are real due process issues with the IMR system. I predict a case will come along that will get to the Court of Appeal and California Supreme Court that finds the IMR process invalid on those sorts of grounds.”
Without doubt, bringing UR procedures into compliance with those outlined in Dubon goes against the grain of a statutory mandate intended to contain costs. Feddersen reconciled this troublesome aspect of Dubon most succinctly when he stated:
“Requiring well-informed UR determinations imposes a burden on defendants, but a just system isn't necessarily the easiest one. The WCAB did the right thing by issuing an en banc opinion in Dubon that stands up for the integrity of the process.”
From his mouth to the defense bar’s ears.
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