You Must Fight Fire with Fire; Admissible Evidence

Sunday, August 17, 2003 | 0

The workcompcentral.com Professional Forums continue to be a ripe resource for instructive materials. The following are excerpts from a recent on line discussion in the Forums on 5814 penalties. The comments made by the various participants have been heavily edited, both for clarity and readability. In some cases the editor has added italics in order to emphasize a point. The objective of presenting the discussion is not to chronicle any one person's complaints, but to demonstrate that the workers' compensation dispute resolution system is a judicial system, and that means that rules of evidence apply.

"Do you want to know how you can get hit with 5814 fees x 4? Do what I did! I just got hit with penalties because I objected to mileage expense which I could not justify through the use of the online mapping services. The WCJ took the employee's testimony that the mileage submitted was correct, even with the supporting documents from the Internet that showed a difference from 10 to 80 miles. Then I got hit because I refused to approve narcotics for a full one month supply. I required the employee see her physician every two weeks in order to get her prescription for dispensing the drug. It seems I am not in a position to request the physician to monitor the dispensing of drugs more carefully, even though the employee was becoming addicted. I missed a payment of 60 cents on reimbursement for supplies and I didn't approve a $4,000.00 lounge chair. So what is my point here! Just you are wondering, the objection on the medical issues were done without a QME, I was relying on the peer review service that indicated my reasons. So just watch out and don't do the same thing I did. Just PAY! PAY! PAY!"

"Boy, can I sympathize. I finally figured out when handling claims, look at every issue like I was a WCALJ - give everything away! We seem to have lost all rights to defend! "

"The Labor Code is specific with regard to a medical dispute. A Claims Examiner is in no position to second-guess a physician. Object via 4061-4062, obtain your Q.M.E. and then choose your battle once you have prima facie evidence supporting your position. Furthermore, should you have been so concerned about the narcotic intake of the Claimant, a Medical Manager should have been assigned. Lastly, I feel the increase in benefits per 5814 was correct. What a chilling effect you send when you unilaterally inhibit the provision of medical treatment based on your second-guessing of a physician. The lounge chair issue most likely in the long run would be cost effective as opposed to potential physical therapy. Don't fail to remind yourself that medical treatment is 'to relieve or cure the effects a Worker's Compensation injury.'"

"You made a very common mistake, the failure to fight fire with fire. There is a categorical imperative to evidence: medical conclusions are appropriately criticized by other medical conclusions. If you are not a physician, you are not entitled to make medical conclusions. The increase was appropriate."

"As to mileage, MapQuest, etc. are simply not always correct, or logical. The test is what is 'reasonable' in a given case. I have seen adjusters reduce a mileage claim per MapQuest which would have the applicant driving by the most direct route on a freeway during rush hour as opposed to the route anyone with half a brain who knew the area would take. The dispute was over a 10 mile commute for therapy instead of 7 or 8 miles which would also take hour or more longer. Other times the computer programs show new proposed roads as having been completed when they are not, or detours are not noted during construction.

"From the original post I can't tell if what was thought reasonable was paid, or if nothing was paid pending resolution of the issue. If the latter, a "10% increase" was clearly due. If the former, was there any attempt to learn WHY the applicant claimed the distance was greater? Was a different route taken, other than the most direct? Were odometer start/stop readings given or did the applicant estimate?

"As far as "peer review" is concerned, it is a slim reed to rely on, as you found out. Without a QME to back up your reviewer, your "evidence" is probably going to be not admissible and your attorney will be left with nothing to support your decisions. CZARNECKI 26 CWCR 165, 63 CCC 742." "'Fights' should be chosen carefully. When refusing payment it is a good idea to always have admissible evidence to back up your decision, and to be able to show you attempted to get clarification from the applicant if a reimbursement request seemed unreasonable, prior to denying. If there was a prescription for the $4,000 recliner and nothing was "done" to rebut it, a 10% increase was close to being automatic. By simply not paying and having the issues tried, it appears your attorney was sent into battle with no ammo, no shield, and blindfolded to boot. The outcome does not seem surprising.

"Stew has correctly pointed out that Czarnecki holds that as to the underlying question before the WCAB an peer review or UR report is not admissible. It may be admissible on the reasonableness of the claims handlers conduct in denying or delaying authorization if the next step is taken i.e.; compliance with LC 4061/4062 and objecting to the PTP's opinion and development of the record.

"ADR 9792.6 also prohibits a claims person from denying authorization for treatment without the supporting opinion of a medical professional whose license allows them to provide the treatment if the adjusting entity has a UR program. You can delay authorization but denial must be supported by a medical opinion (usually a physician but not a nurse or paraprofessional) and then the legal steps for obtaining evidence must be followed of obtain admissible evidence.

"As far as mileage is concerned, I believe if is reasonable to use Mapquest as a guide. If the applicant's mileage shows a 10 mile trip and Mapquest shows 8, there is no issue. However I did have one claimant requesting 10 miles each way to a gym that was 1.2 miles from her house. A dramatic difference can justify a request for additional information. I also believe it is useful to have mileage forms completed under penalty of perjury and would encourage you to have that language put into your forms. It makes the injured worker think twice about fudging the numbers too much. Since mileage is covered under LC 4603.2 for reimbursement (See Avalon Bay v WCAB) and medical bills are supposed to be submitted under penalty of perjury to be admissible before the WCAB (LC 5703) , I think it is reasonable to request such verification of mileage.

"I agree that fights should be chosen with care and only if you have properly developed information to show that efforts were made to object and investigate the issue. One significant discrepancy in Mapquest should just be the starting point. If one occurs I would recommend the following: Object to the amount of the billing, request whatever additional information might be needed to verify the billing (such as to and from addresses, special circumstances of travel etc) and pay the amount that appears reasonable within the time frames of LC 4603.2.