Why the New Law Favors 'Applicant' Med Legals

Saturday, October 23, 2004 | 0

The following article was originally posted in the WorkCompCentral Forums. Authored by York McGavin, it is republished in this section as the editors felt it would be of interest to the workers' compensation community at large. Mr. McGavin argues in this piece that the appeal process for objecting to MPN and UR decisions, by operation of law, will necessarily be populated with more liberal physicians whose practices under pre-SB899 law consisted of "applicant" work.

In recently reviewing the Willette decision and LC 4062, I stumbled across some interesting issues worthy of sharing.

First of all, providers are struggling to make a determination as to whether or not to apply for membership in a Medical Provider Network (MPN), or into each and every MPN. The one thing that we know for sure is that there will be some providers (the ones that the payor community determines are 'abusive' treaters or are too 'applicant-friendly') who will not be allowed entry into any MPN, due to economic profiling.

Against this background, lets take a look at LC 4610(g)(3)(A):

"Decisions to approve, modify, delay, or deny requests by physicians for authorization prior to, or concurrent with, the provision of medical treatment services to employees shall be communicated to the requesting physician within 24 hours of the decision. Decisions resulting in modification, delay, or denial of all or part of the requested health care service shall be communicated to physicians initially by telephone or facsimile, and to the physician and employee in writing within 24 hours for concurrent review, or within two business days of the decision for prospective review, as prescribed by the administrative director. If the request is not approved in full, disputes shall be resolved in accordance with Section 4062. If a request to perform spinal surgery is denied, disputes shall be resolved in accordance with subdivision (b) of Section 4062."

(Emphasis throughout this article was added by the author.)

Now, let's look at LC 4062(a), (b), & (c)(1-4):p "(a) If either the employee or employer objects to a medical determination made by the treating physician concerning any medical issues not covered by Section 4060 or 4061 and not subject to Section 4610, the objecting party shall notify the other party in writing of the objection within 20 days of receipt of the report if the employee is represented by an attorney or within 30 days of receipt of the report if the employee is not represented by an attorney. Employer objections to the treating physician's recommendation for spinal surgery shall be subject to subdivision (b), and after denial of the physician's recommendation, in accordance with Section 4610. If the employee objects to a decision made pursuant to Section 4610 to modify, delay, or deny a treatment recommendation, the employee shall notify the employer of the objection in writing within 20 days of receipt of that decision. These time limits may be extended for good cause or by mutual agreement. If the employee is represented by an attorney, a medical evaluation to determine the disputed medical issue shall be obtained as provided in Section 4062.2, and no other medical evaluation shall be obtained. If the employee is not represented by an attorney, the employer shall immediately provide the employee with a form prescribed by the medical director with which to request assignment of a panel of three qualified medical evaluators, the evaluation shall be obtained as provided in Section 4062.1, and no other medical evaluation shall be obtained.

(b) The employer may object to a report of the treating physician recommending that spinal surgery be performed within 10 days of the receipt of the report. If the employee is represented by an attorney, the parties shall seek agreement with the other party on a California licensed board-certified or board-eligible orthopedic surgeon or neurosurgeon to prepare a second opinion report resolving the disputed surgical recommendation. If no agreement is reached within 10 days, or if the employee is not represented by an attorney, an orthopedic surgeon or neurosurgeon shall be randomly selected by the administrative director to prepare a second opinion report resolving the disputed surgical recommendation. Examinations shall be scheduled on an expedited basis. The second opinion report shall be served on the parties within 45 days of receipt of the treating physician's report. If the second opinion report recommends surgery, the employer shall authorize the surgery. If the second opinion report does not recommend surgery, the employer shall file a declaration of readiness to proceed. The employer shall not be liable for medical treatment costs for the disputed surgical procedure, whether through a lien filed with the appeals board or as a self-procured medical expense, or for periods of temporary disability resulting from the surgery, if the disputed surgical procedure is performed prior to the completion of the second opinion process required by this subdivision.

(c) The second opinion physician shall not have any material professional, familial, or financial affiliation, as determined by the administrative director, with any of the following:
(1) The employer, his or her workers' compensation insurer, third-party claims administrator, or other entity contracted to provide utilization review services pursuant to Section 4610.
(2) Any officer, director, or employee of the employer's health care provider, workers' compensation insurer, or third-party claims administrator.
(3) A physician, the physician's medical group, or the independent practice association involved in the health care service in dispute.
(4) The facility or institution at which either the proposed health care service, or the alternative service, if any, recommended by the employer's health care provider, workers' compensation insurer, or third-party claims administrator, would be provided."

Now, let's consider LC 4616.3(c):

"If an injured employee disputes either the diagnosis or the treatment prescribed by the treating physician, the employee may seek the opinion of another physician in the medical provider network. If the injured employee disputes the diagnosis or treatment prescribed by the second physician, the employee may seek the opinion of a third physician in the medical provider network."

Last, let's take a look at LC 4616.4(b):

"If, after the third physician's opinion, the treatment or diagnostic service remains disputed, the injured employee may request independent medical review regarding the disputed treatment or diagnostic service still in dispute after the third physician's opinion in accordance with Section 4616.3. The standard to be utilized for independent medical review is identical to that contained in the medical treatment utilization schedule established in Section 5307.27, or the American College of Occupational and Environmental Medicine's Occupational Medicine Practice Guidelines, as appropriate."

LC 4610(g)(3)(A), in addressing UR, states, "If the request is not approved in full, disputes shall be resolved in accordance with Section 4062. If a request to perform spinal surgery is denied, disputes shall be resolved in accordance with subdivision (b) of Section 4062."

LC 4062(c)(1-4) defines who is prohibited from conducting a 'comprehensive medical evaluation.': "(c) The second opinion physician shall not have any material professional, familial, or financial affiliation, as determined by the administrative director, with any of the following:
(1) The employer, his or her workers' compensation insurer, third-party claims administrator, or other entity contracted to provide utilization review services pursuant to Section 4610.
(2) Any officer, director, or employee of the employer's health care provider, workers' compensation insurer, or third-party claims administrator.
(3) A physician, the physician's medical group, or the independent practice association involved in the health care service in dispute.
(4) The facility or institution at which either the proposed health care service, or the alternative service, if any, recommended by the employer's health care provider, workers' compensation insurer, or third-party claims administrator, would be provided."

LC 4616.3(c) sets forth the options to an Injured Worker if the Injured Worker is displeased with either the treatment or diagnosis of the MPN PTP: "If an injured employee disputes either the diagnosis or the treatment prescribed by the treating physician, the employee may seek the opinion of another physician in the medical provider network. If the injured employee disputes the diagnosis or treatment prescribed by the second physician, the employee may seek the opinion of a third physician in the medical provider network."

LC 4616.4(b) addresses the recourse to an Injured Worker after exhausting the three (3) physician options in LC 4616.3(c): "If, after the third physician's opinion, the treatment or diagnostic service remains disputed, the injured employee may request independent medical review regarding the disputed treatment or diagnostic service still in dispute after the third physician's opinion in accordance with Section 4616.3. The standard to be utilized for independent medical review is identical to that contained in the medical treatment utilization schedule established in Section 5307.27, or the American College of Occupational and Environmental Medicine's Occupational Medicine Practice Guidelines, as appropriate."

Now, putting all this together, I view LC 4610(g)(3)(A) as providing a road-map for the Injured Worker to follow if he disputes a UR denial ----- in other words, the Injured Worker must go the LC 4062, 4062.1, or 4062.2 route, depending on a number of factors.

On the other hand, once the MPNs are formed and adopted, LC 4616.3(c) provides that if the Injured Worker is displeased with either the treatment or a diagnosis by all three of the MPN primary treating physicians, his only recourse is to go to the LC 4616.4(b) IMR physician.

There is a world of difference between the Injured Worker objecting to a UR denial, and the Injured Worker being displeased with the MPN providers 'treatment or diagnosis.'

So, if a MPN physician makes a request for authorization to the employer's UR physician, which is denied, the Injured Worker now has to go the LC 4062 route. The LC 4062 'medical evaluator' may not be any part of the MPN, as is mandated by LC 4062(c)(1-4).

Who will these medical evaluators be??? Could it be that because the employers want to fill their MPN with defense wash-out physicians, the only medical evaluators not in the MPN will be those "abusive and applicant-friendly" providers?

On the other hand, once in the MPN, if the Injured Worker is displeased with either the treatment or diagnosis of the 3 MPN providers, the Injured Worker can only choose to go to IMR per LC 4616.4(b) ----- and although the IMR physician can hold a "nonrestricted license in any state of the United States" [LC 4616.4(a)(4)(B)], the IMR physician must be "licensed pursuant to Chapter 5 of the Business and Professions Code" in California [LC 4616.4(a)(2)], and the AD must "Ensure the independence of the medical professionals retained to perform the reviews through conflict-of-interest policies and prohibitions, and ensure adequate screening for conflicts of interest." [LC 4616.4(a)(2)(E)]. This means that the IMR physician can not have any affiliation with the MPN.

In summation, a UR denial must be addressed through the LC 4062, et. seq., process, and the medical evaluator can not be affiliated with the MPN. An IMR physician can be located anywhere in the United States, but must be licensed in California; and, the IMR physician can not have any affiliation with the employer or employer's MPN.

Accordingly, only a physician 'medical evaluator' who either chooses to opt out of joining an MPN, or who is economically profiled out of joining an MPN, can conduct 'comprehensive medical evaluations' for purposes of challenging a UR denial per LC 4062 et. seq., ----- or be the IMR physician per LC 4616.4.

It sounds to me that these 4062 and IMR physician panels will primarily consist of ex-applicant treaters or ex-applicant med-legal evaluators.

Gee whiz, if I were a physician with a QME behind my name, I would stay out of the MPNs and just wait for all the UR and IMR referrals to come my way. By not being a treater, and instead just being a med-legal evaluator, I would have a lot fewer headaches, reduced overhead expenses, and a lower exposure to a med-mal claim. Just one ML-104 a day will keep poverty away. One more thought before closing: Each employer can form their own unique MPN. One employer might 'hand-select' the MPN providers, while other employers may choose Blue Cross, Blue Shield, United Healthcare, Kaiser, FHP, or Aetna, as their MPN. It is going to be real fun to see an employer who chooses any of the above healthcare insurance company participating providers as their MPN, then have the AD select independent IMR panels whose physicians are all mandated to be non-participating providers with any of the above healthcare insurance companies.

The inimitable phrase, I heard so many times as a child when watching Laurel & Hardy comes to mind: "What a fine mess you've got us into now Ollie."

by York McGavin. York can be contacted at ymcgavin@socal.rr.com.

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