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Utilization Review and Independent Medical Review

By Robert L. Weinmann

Tuesday, December 30, 2014 | 555 | 0 | min read

Of these two programs, the more perfidious one is independent medical review (IMR), into which the Legislature carelessly linked secrecy and finality of decision making.

The IMR decision is supposedly a final medical decision no matter how incorrect and  harmful that decision may be. It cannot be appealed to the Workers' Compensation Appeals Board since that otherwise constitutional pathway has been precluded by Senate Bill 863.

The idea in this situation is that doctors, not lawyers or judges, should make medical decisions. The concept sounds good in theory. Nonetheless, the Legislature felt it necessary to protect the IMR doctors from outside scrutiny by keeping IMR doctors' names secret just as in France in the days of the Bastille when secret letters enabled throwing French citizens, including nobility, into prison without trial.

IMR is justly under fire at this time. On Dec. 3, the California 1st District Court of Appeal, Division One, granted the petition for writ of review filed by Attorney Joseph Waxman in the case of Frances Stevens v. WCAB and Outspoken Enterprises/State Compensation Insurance Fund (ADJ 1526353).

In a WorkCompCentral report from Dec. 18, we're told that Stevens had been found 100% disabled. Stevens needed a high level of assistance even for ordinary activities of daily living, including personal hygiene. State Compensation Insurance Fund submitted the request to utilization review, which denied the requested home health aide and four medications. An IMR review request was submitted. After a lengthy delay, seven months, actually, Maximus upheld the UR denial. That is when an appeal was filed with the WCAB. Part of the legal appeal involves jurisdiction, i.e., the constitutionality of Labor Codes 4610.5 and 4610.6.

This writer understands IMR is governed in part by LC 4610.6 (h), which says WCAB can set Maximus IMR decisions aside only on what WorkCompCentral's piece called "very limited grounds," such as fraud, material conflict of interest, racial bias and other matters such as ethnic or sexual orientation.

Under these circumstances, that a UR decision might have been flat-out wrong, stupid, and harmful, and that IMR approval might also have been wrong, stupid, and harmful, simply doesn't matter under the law. Welcome to "1984" in medical-legal jurisprudence.

Organizations with a stake or interest in the outcome should file amicus briefs as soon as possible, especially medical organizations that purport to have patients' interests at heart.

References (some items listed more than once under separate headings when more than one site used the editorial and if one of the sites is not readily accessible)

From WorkCompCentral:

1) "Malpractice by Utilization Review," 12/19/14.

2) "Utilization Review: Hypocrisy in Velvet Gloves," 3/16/14.

3) "Stevens Writ Granted," 12/18/14.

4) "Applicants' Attorneys Pan DWC's Rosy View of Independent Medical Review," 12/19/14.

5) "Maximus Upheld Denial of Treatment Four-Fifths of the Time," 12/10/14.

From the California Applicants Attorneys' Association:

1) Under Eclipse Daily News, 12/19/14, "Malpractice by Utilization Review."

From Politicsofhealthcare.com:

1)  "Is SB 863 an Example of Legislative Malpractice?" 12/22/14.

2)  "Malpractice by Utilization Review, " 12/13/14.

3)  "Is Utilization Review in the Cards for 2015?" 12/01/14.

4)  "How Utilization Review and Independent Medical Review ... Deprive Injured Workers," 8/11/14.

5) "Utilization Review: Hypocrisy in Velvet Gloves," 3/18/14.

Dr. Robert L. Weinmann is a neurologist in San Jose. This column was reprinted with his permission from his Politics of Healthcare blog.

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