Gotcha!: UR, IMR and LC 4062.2 Traps

Wednesday, December 4, 2013 | 0

From the perspective of a claims examiner handling Workers' Compensation cases for a major carrier in the 1970s, the business of handling claims then seemed a much simpler and easier undertaking than it is today. Back then, if at any time we thought treatment was getting out of hand or we did not agree with a final evaluation of an applicant's doctor, we simply got our own medical report. No legal foreplay required. In most cases, we negotiated a resolution somewhere in between the reports or, failing that, resorted to an agreed medical evaluator or the Workers' Compensation Appeals Board appointed an independent medical examiner and then we resolved the dispute.

Today, claims management and the practice of Workers' Compensation law has become a highly complex and technical undertaking fraught with potential traps for all involved. SB 863 and the rules that went into effect in October 2013 affect many areas of Workers' Compensation. This article discusses a few perfect examples of some of the problem areas we are finding in just the area of medical dispute procedures.

If you think you may want to object to a recommended course of treatment or medical procedure on an admitted case with an admitted body part, the rule is simple: You must submit the questionable treatment recommendation to Utilization Review LC 4610 et. seq. The regulations say that the request of a treating doctor "must" be submitted on Division of Workers' Compensation form RFA, the "Request For Authorization." 8 Cal. Reg. 782.9.1(c)(2). Here is the first potential problem. A recent speaker panel at the State Bar Workers' Compensation Section meeting in San Diego warned that a defendant probably would not be allowed to simply ignore a treatment request that was not submitted on the proper form, because once alerted to the possible need for a procedure, the defendant has an affirmative "duty to investigate." We heard this statement repeated the following weekend at a Workers' Compensation Defense Association meeting held in Anaheim.

The affirmative duty of a defendant to investigate is a long-standing principle in the law. Armando Consani vs. Safeway (1990) 55 Cal. Comp. Cases 312 (writ denied). What are the rules and time limits if the request does not come in on a proper form RFA? We don't know and we suspect there may be litigation and case law development over this in the future. The probable result if defendant does nothing in response? "Gotcha!"

What if you don't have an admitted case or body part? The medical dispute process is delayed until that dispute is resolved by agreement or by a WCAB judge. Note that the utilization review and independent medical review processes are not permanently inapplicable in these cases. They are simply indefinitely deferred, often while the injured worker self-procures all kinds of treatment with Dr. Disability and his friends. Because of this, we think it is usually best to get these types of disputes resolved as expeditiously as possible, even if by trial if necessary. Ignore the problem and hoping it will go away later on down the road? In too many cases the result may be "Gotcha!"

Assuming a proper RFA, a claims examiner has precious little time to respond to it. Claims personnel can authorize the requested treatment without need of expert medical review or opinion. Otherwise, the request must be quickly sent to utilization review. 8 Cal. Reg. 9792.9.1 says the gotcha clock starts ticking the day after receipt of the DWC form RFA, or in some cases within hours of receipt, if prospective. UR has five working days to respond assuming the reviewer has enough information to make a decision. For an emergency (expedited) request, the time limit is 72 hours after receipt. It is at this point that we see a series of potential issues. Sometimes the time limits are not met. In fact, our sources tell us that, of the Top 10 reasons for invalid utilization reviews, failure to adhere to the time limits is the number one reason. In other instances, under pressure to meet the extremely short time limits imposed by the procedural rules, examiners fail to send all of the relevant prior reports to the reviewer (the No. 3 reason for invalid UR). We have seen many instances where a UR denial of an RFA is based on the MTUS, stating that the treating doctor had not tried other recommended conservative modalities before asking for an invasive procedure. Often this occurs because the only documents sent to the reviewer are the medical report and accompanying RFA in question. Yet, in looking back at the record, we note the UR doctor never saw the extensive reports of the prior failed conservative treatment. "Gotcha!"

In order, the list of the Top 10 UR failures is as follows: 1) Failure to meet the response time limits; 2) The medical license of the reviewer is not appropriate compared to the physician making the request; 3) all relevant records and reports necessary for a well-reasoned opinion were not reviewed by the UR doctor; 4) the criteria for denial (noncertification) were not adequately communicated per 8 Cal. Reg. 9292.9.1(e)(5)(F); 5) the UR doctor failed to "immediately" notify the requesting physician of additional required exams or testing, or the notice was incomplete per 8 Cal. Reg 9792.9.1(f); 6) the UR opinion was not based on the Medical Treatment Utilization Review Schedule (MTUS); 7) a decision to modify or deny a requested treatment was not communicated to the requesting doctor on time (within 24 hours by telephone, followed by written response in two days) per 8 Cal. Reg. 9792.9.1.(e) (3); 8) an IMR application was not provided (see below); 9) the reviewing doctor did not sign the UR report per 8 Cal. Reg. 9792.7(b)(1); 10) the UR request for additional information is vague and ambiguous such that the treating doctor does not know how to respond. See 8 Cal. Reg. 9792.7(b)(1). "Gotcha" times 10!

The applicant's bar, already playing defense to the independent medical-review process, is seizing on these and other perceived deficiencies to argue that the UR reports are invalid and therefore Dr. Disability automatically gets what he or she wants. Their plan of action is to place the issue on calendar for expedited trial. The defense bar argues that even so, the applicant will still have to prove up need for treatment. The underlying question is, assuming some deficiency in the UR process, whether the UR doctor's report can come into evidence. We suspect (and here again, there will be case law) the answer will be "no" and, since the defendant will probably have no other legally admissible evidence to rebut Dr. Disability, the good doctor gets to treat away. See Academy of Arts College v WCAB (2011) 76 CCC 352. Gotcha!

Let's do an instant replay here and take a look at item No. 8 on the above list. Let's say the UR time limits are met and the UR report seems to address everything it should and in the way that it should. The examiner is required to attach a request for independent medical review and accurately and completely fill out all the details and prepare a pre-addressed envelope for sending the request to the DWC, leaving out only a signature by the applicant or the applicant's representative. As a defense firm we sometimes get a copy of the UR report but no copy of anything that was attached, leaving us to wonder if the required IMR form was completed and sent together with the pre-addressed, pre-stamped envelope. Sometimes we find it wasn't. This arguably leaves the applicant endless time to take further action or possibly invalidates the whole UR process. "Gotcha!"

If UR denies requested treatment, the injured worker or his representative has 30 days from the issuance of the UR determination to sign and mail the request for IMR. The number of such requests going to the administrative director has grown exponentially. According to Dr. Rupali Das during a Medical Unit update, in June 2013, 350 IMR applications had been submitted. In July, 4,410 applications were received. By August 2013, the number of applications shot up to just under 16,000. We are unsure how long we can expect the process to take, but we do expect delays for nonemergent cases. If the matter is assigned to the URO, a request will be issued for additional documentation from the adjusting agency or carrier.

What happens if the adjuster does not timely respond? Probably another "Gotcha."

So perhaps you want to consider an end run around all these UR/IMR obstacles and traps. If the defendant raises a dispute under LC 4062, the parties may resort to an agreed medical examiner or request the DWC Medical Unit to assign a panel of three potential qualified medical examiners from which to choose per the process in LC 4062.2. LC 4062 indicates either party can object to "a medical determination made by the treating physician" not otherwise addressed in LC 4060 (compensability) or 4661 (termination of TD) or 4610 (treatment). Based on that, the defendants previously had the ability to object to determinations by any treating physician as long as the dispute could be aimed at something other than the recommended treatment. We are now only allowed to object to reports of the "primary treating physician" as defined by 8 Cal. Reg. 9785(a)(1). Now, when Dr. Disability farms his patients out to the DC, the PhD, the DPM and DVM for treatment and reports, we cannot validly object until we get a report from Dr. Disability "incorporating" the reports of the secondary treating doctor. We may now have to encourage the doctor to issue that report. If the LC 4062 objection is invalid because it is not aimed at a PTP report, arguably any report that is generated in the AME or QME process may also be invalidated. "Gotcha!"

If you are seeking a QME panel, another potential pitfall is the verbiage of the objection letter itself. The DWC Medical Unit has been scrutinizing applications for assignment of QME panels and rejecting requests where it believes there was some deficiency in the process. The objection letter must accompany the panel request form. The original favorite reason for rejecting a request was failure to offer up an AME (even if you did not want one on the case), but the rules have now been relaxed so that no AME need be offered. However, under LC 4062.2 a party still has to wait 10 days (plus five for mailing) from the service of the objection before requesting the panel assignment from the DWC. Failure to wait the proper period starts the process all over again.

The rules also state that the objection letter must cite the author and date of the report to which the objection pertains and the specific medical determination to which objection is made. (8 Cal. Reg. 30) Failure to abide by these requirements will cause the Medical Unit to reject the request for a panel. "Gotcha!"

The medical dispute-resolution process is just one of many areas of California Workers' Compensation procedure and law which have been impacted by the series of reforms that began in 2003 and continue to emerge even now, with the latest rule changes implemented this past October. Everyone involved continues to pedal faster and harder to keep up with the changes. Attention continues to shift in emphasis, seemingly often replacing substance with form. Employer, adjuster and defense counsel need to work together as harmoniously as possible to react to case events quickly and properly to avoid the dreaded "Gotcha!"

Howard Stevens is a workers' compensation defense attorney in the Orange, Calif., office of McDermott & Clawson. This column was reprinted with his permission from the firm's client newsletter.