Independence: Medical Treatment under Workers' Compensation

Tuesday, December 3, 2013 | 0

During the past weeks there has been some controversy brewing about whether the California Division of Workers' Compensation was illegally or unethically interfering in the independent medical review process.

This controversy came to light after a memo surfaced from a workers' compensation judge who attended a recent training for judges conducted by the DWC in San Francisco.

Since I was not there, I can not vouch for what was actually said.

But the memo which has made the rounds charges that DWC Medical Unit Director Rupali Das and Department of Industrial Relations attorney Kathy Zalewski "acknowledged that they had received phone calls from claims administrators protesting IMR decisions which had overturned UR decisions denying care. Both admitted that they had intervened with Maximus to issue new decisions upholding the disputed UR decisions denying medical care to injured workers."

The memo mused whether "injured workers may rightly question whether this is independent medical review."

Apparently this set off alarms at the DWC, causing a clarifying memo to be sent from the DWC, noting that "some of the discussion of DWC's quality oversight of independent medical review determinations was imprecise."

The DWC clarified that it does do random reviews of IMR determinations made by Maximus. Further, "in addition, interested members of the public may call particular determinations to DWC's attention. In those instances, the determination at issue is reviewed by Dr. Das and other DWC and Maximus staff."

However, the DWC's clarifying email claims that, "No inquiry from a party of the public has resulted in a determination being reversed."

According to the DWC, the determination in several cases was not overturned on the merits because of a complaint from a party.

Rather, the DWC says that "on two occasions, amended determinations were issued in cases where Maximus made a determination on the merits in the absence of medical records provided by the parties. Both determinations were rescinded, as the cases were deemed ineligible for IMR by DWC due to the lack of records."

An article written by Greg Jones, Western bureau chief for WorkCompCentral, quotes DWC spokeswoman Erika Monterroza as claiming that IMR decisions 13-602 and 13-740 had been rescinded.

Monterroza was quoted as follows:

"In these two cases, there had been no UR determination on the merits of the treatment requested because no records were available for the UR reviewer. As such, those cases should have been deemed ineligible for IMR from the outset, but were not. The determinations were rescinded on the basis of the disputes' ineligibility for IMR and until there are UR determinations on the merits, there is no basis to resubmit them for IMR review."

The article by Jones points out that in at least four cases (IMR 13-676, 13-10-3, 13-114 and 13-119) the utilization-review decision was upheld even though the claims administrator had not submitted records.

There is no indication that the DWC intervened to invalidate those decisions.

The concern here of some is whether the DWC is cherry-picking and taking sides. That may be the case.

But then again it may be that the DWC, with limited resources, has simply not had the ability to do oversight in all needed cases but did do it in some selected cases.

A fix to all of this could be achieved through clear regulations. Maximus would not be permitted to act on any case where records had not been made available to the UR reviewer. Maximus would not be permitted to act on any case where records were not supplied to the IMR reviewer as required by the IMR regs. Any review undertaken by Maximus under those situations would be null and void. An adjuster's failure to provide records to the UR reviewer or the Maximus reviewer would constitute a waiver of any objection to the treatment.

Such a policy would encourage compliance by adjusters and incentivize them to provide records. Moreover, it would relieve the DWC from concerns that it was improperly intervening in the process.

Julius Young is an applicants' attorney for the Boxer & Gerson law firm in Oakland. This column was reprinted with his permission from his Workers' Comp Zone blog.