Unintended Consequences: Utilization Review and Litigation

Monday, May 12, 2014 | 0

It took about a year, but that's about how long these things usually take.  When Senate Bill 863 went into effect, many parties, including Prium, expressed some concern around the independent medical review process and whether or not it would stand up to the challenges that we knew would come.  Claimant attorneys in the state have been busy and we are starting to see the expected results.

In Dubon v. World Restoration, Inc., (cite) the WCAB took back much of the authority that the Legislature tried to take away. Utilization review determinations that suffer from a material procedural defect that undermines the integrity of the utilization review determination no longer fall under IMR's jurisdiction.  Those determinations will now rest with judges and as the WCAB so eloquently put it "a prudent employee" that wishes "to challenge the [...] procedural validity of a UR decision before the WCAB ... will also file a timely request for IMR.  If the employee elects not to file ... the employee does so at his or her own peril."

What does this mean?  We are going to see more requests for both IMR and hearings, as "prudent" attorneys will want to cover all bases, and we will see additional confusion around what constitutes a material defect.  Another case decided last week brought this point up as well.

In Weilmann v. United Temporary Service, the WCAB held that UR decisions must be signed by the reviewer and that they must be provided sufficient information necessary to make the determination on medical necessity.  In this case the insurance carrier failed to provide the AME report to the UR reviewer.  Whether or not the burden rests on the physician requesting the treatment or the insurance carrier is a post for another day.  Based on the totality of the circumstances in this case, the UR decision was found to be invalid and the treatment request should be granted (if the judge finds it to be reasonable and necessary).

Lastly, and potentially most impactful, is Stevens v. State Compensation Insurance Fund, being heard by the First District Court of Appeals, in which Ms. Stevens, who is 100% disabled, was denied medical care.  The underlying argument is the one that we were most concerned with from the outset of SB 863 and the IMR process: the inability of the injured worker to make an appeal following an IMR denial.

It's been a busy few weeks in California and I don't expect it to slow down.  We will be anxiously watching to see what's next.