Utilization Review of a Secondary Physician's Recommendations

Sunday, April 11, 2004 | 0

A recent discussion in the Legal section of the workcompcentral.com Professional Forum addressed utilization review, the primary treating physician, and secondary opinions. Since Labor Code section 4610 is a new code section, untested by the courts, and the application of treatment guidelines continues to be (and will for some time in the future) a source of confusion and speculation, the editors felt this dialogue would be particularly timely, relevant and educational. The original lengthy thread has been heavily edited for both readability and succinctness.

Q: The primary treating physician (PTP) makes a consultation referral to a pain management physician. The pain management physician comes back with a report and recommends all sorts of tests and services. The treating physician does not agree with this report. So here's the question:

Does the report and recommendations of the pain management physician need to be subject to utilization review (UR) pursuant to Labor Code section 4610?

A 1. The main issue is what can I sustain at trial, and, if the pain management physician's recommendations are denied is that a penalty situation? A good place to start is with 4610 (10) (e). It states that only a licensed physician whose scope of practice encompasses the requested services can modify, delay or deny treatment. So your PTP would certainly qualify.

But, unless your PTP is part of the claim administrator's Peer Review Panel, his/her opinion won't be part of the formal UR process.

The PTP can be involved, however. Have the PTP put their opinion in writing. Citing "evidence based medicine" protocols is a great idea. ACOEM would be preferable. But if ACOEM is not on point, other EBM protocols can be used.

The Claim Administrator should then take the Pain Management Doctors written request for treatment and send it through their UR process. Along with the Pain Management Doc's request, accompanied by the PTP's report. The Peer Review physician will have an easy time stating whether the treatment request by the pain management physician is reasonable. There is a chance the Peer Review Physician will agree with the Pain Management Doc. But if this is the case, I think your PTP should reconsider their position.

A 2. There are a couple of ways this case can go. If pain management doctor pushes the issue, they may have claimant transfer PTP status to them. If medical control is still with the carrier it can be challenged with a request for an expedited hearing on the matter (see Vega vs. Taco Bell, 68 CCC 921 (2003)). If the carrier/employer does not have medical control then an objection can be raised pursuant to Labor Code 4062, and go to an AME/QME or panel QME. If the injured worker or pain management physician does not push the issue, we just move on with the claim and your PTP knows better than to use that group again.

Why should the carrier go through all of this if we have a PTP who states the pain management physician's recommendations are unreasonable? Because, by staying within the UR process the carrier shields itself from 5814 penalties and is more likely to prevail at trial. You could try fighting this only with the PTP's opinion. It is admissible and will carry weight, even though there is no presumption. But by incorporating the UR process and perhaps a QME, it would carry much greater weight.

A 3. It appears to me that since the PTP has not endorsed the recommendations of the pain management consultant, that all of this discussion is somewhat premature. The PTP controls the keys to the medical treatment. If he does not accept the consultant's recommendation, there is no request for treatment. The pain consultant's request for authorization (if one wants to consider it such) can be denied based on the report of the PTP. However since the PTP has not echoed the request, there is actually no need to respond since it is only treatment by the PTP that matters.

A 4. I disagree that the pain management physician's recommendations can just be ignored if the PTP does not agree because 4610 does not specify that a treatment request needs to be from a PTP before it is subject to UR:

(a) For purposes of this section, "utilization review" means utilization review or utilization management functions that prospectively, retrospectively, or concurrently review and approve, modify, delay, or deny, based in whole or in part on medical necessity to cure and relieve, treatment recommendations by physicians, as defined in Section 3209.3, prior to, retrospectively, or concurrent with the provision of medical treatment services pursuant to Section 4600.

Based upon this section I think the defendants should put the request through UR. I think failure to follow the UR process will lead to 5814 penalties. Even if we assume that we can rely on the PTP in this situation, all the injured worker need do is designate the pain management physician as the PTP and the need to get UR going will occur anyway.

A 5. Read through Regulation section 9785. The primary treating physician is the one and only doctor who controls medical treatment. Consulting doctors report to the PTP, who incorporates that into the regular status reports. Unless the employee designates the pain management doctor as the PTP, I see no need to go through the time and expense of UR (and risk that some of the treatment would be approved) if the PTP has decided not to go with his consultant's recommendation.

A 6. It would be dangerous to rely solely on Regulation section 9785 because nowhere in the Regulations does it state that a secondary physician's report is inadmissible at the WCAB and that they can be ignored by the defendant if the PTP and secondary physician disagree. In fact 4610 clearly states that any physician's request for treatment must be addressed via UR. Since 9785 has not been updated to reflect 4610 yet, I would not rely on 9785 in this area.

A 7. I agree that UR needs to be completed on the pain management physician's report...but for a different reason, and on a different time-line.

If the pain management physician examined the applicant, then, pursuant to Regulation section 14003, submitted a 5021 containing a suggested 'reader's digest version' of his final report, in the treatment plan section, the treatment plan section (I believe it is box 24) is legally defined as the "request for authorization."

If the pain management physician cogitated upon the applicant's condition for 4 days after the examination, then sent in his 5021 with a 'reader's digest version' of the treatment plan, on the 5th day, the formal prospective UR process has now been triggered, PRIOR TO RECEIPT OF THE FINAL REPORT.

If no formal UR process was initiated in response to the 5021, and the UR physician did NOT request any additional information necessary to make a determination of the reasonableness and/or necessity of the proposed treatment plan within 14 days, I believe the payer may quite possibly be vulnerable to a 5814 penalty...and in addition, the payer is quite certainly vulnerable to discipline from the Audit Unit.

A wise move in my above-envisioned scenario, from the prospective of the defendant, would be to have the UR physician, upon receipt of the 5021, to issue a 'delay' letter requesting additional information (i.e., the report) from the pain management physician prior to authorizing, modifying, or denying.

From a provider's point of view, there really is much to like about LC 4610. From a defendant's point of view, 4610 is certainly going to cause a lot of rapid time-sensitive work on the front-end to avoid adverse consequences (5814 and/or Audit Unit complaints) on the tail-end.

A 8. A delay under LC4610 (g)(5) requires some specificity as to the justification therefore, so a boilerplate delay just to buy time will not suffice. It is interesting to note that while that section indicates timeframes applicable after the information to make a decision is received, it does not appear to provide a specific timeframe for the delay itself. Many carriers/TPAs appear to be adopting a delay period similar to what is available under LC4062 (b) regarding second opinion on spinal surgery requests.

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