Medical Treatment and UR (Part 1)

Ramirez v. WCAB (Court of Appeal Published) (82 CCC 327):

 

Daniel Ramirez sustained an injury to his lower ankle in the course of his employment for the State Department of Health Care Services.  Ramirez settled this case by way of Stipulations with Request for Award which provided for future medical treatment.  The treatment included a gym/swim membership and over the course of about 1 ½ years 24 sessions of acupuncture were authorized.

 

In July 2014 applicant’s physician prescribed 12 sessions of acupuncture. The utilization review recommended the treatment be denied. The reviewer’s rationale in denying the treatment was that the acupuncture is recommended as a short-course treatment in conjunction with other interventions for a total of up to 8 to 12 visits over 4 to 6 weeks, where there is evidence of reduced pain and medication use, and there is functional improvement. The reviewer stated the applicant had already completed the maximum number of recommended therapy sessions, thus the request was not reasonable.

 

The applicant appealed the utilization review denial under the Independent Medical Review Process. The Independent medical review noted the applicant had 24 prior acupuncture sessions approved and there had been no change in his work restrictions or functional improvement for almost a year. The Independent medical review denied the requested treatment and stated according to evidence-based guidelines, further acupuncture or visits after initial trial are medically based on documented functional improvement. The claimant had at least 24 acupuncture visits approved in the last year. Due to the lack of objective functional improvement and decrease dependence on medical treatment, further acupuncture was not medically necessary.

 

The applicant appealed the decision to the Board. The grounds for appeal were that the independent reviewer may have been subject to a material conflict of interest and the determination may have been the result of bias on the basis of race, national origin, ethnic identification, rigid religion, age, sex, sex orientation, color a disability. The applicant wanted discovery determine whether the doctor performing the Independent medical review was biased or had a conflict of interest. The appeal also argued the denial was materially defective because it failed to show the medical treatment utilization schedule. The applicant argued the material defect was equivalent to an untimely utilization review, which could be appealed to the Appeals Board under Dubon II.  The applicant argued the Independent medical review doctor had improperly made credibility judgments about the applicant physician’s report. To the extent that the Board was prevented from disclosing the identity of the doctor who did the review, applicant raised constitutional challenges including but not limited to denial of his right to substantive and procedural due process. The applicant understood the Appeals Board could not rule on constitutionality of Labor Code provisions, however, applicant raises this issue to preserve his appeal.

 

The appeal was ordered taken off calendar at the request of the defendant because the applicant wanted only to raise the constitutional issue, over which the Board could not review.

 

The applicant filed a petition for removal or reconsideration of order taking matter off calendar. A Workers’ Compensation Judge reviewed the petition and recommended the petition for reconsideration be dismissed or denied. The WCJ determined the petition should be dismissed because it was not based on any of the grounds set forth Labor Code §5903. Likewise, petition for removal must be based on the grounds that the order will result in significant prejudice or irreparable harm. The WCJ found neither exist. The WCJ further found that there was no legal basis for the constitutional challenge because the Board has no power to declare a Statute unconstitutional.

 

The WCAB dismissed the reconsideration petition because it was from an order taking the matter off calendar, which was not a final order. The Board found the petition for removal was subject to denial because in order taking matter off calendar does not result in substantial prejudice or irreparable harm. Nevertheless, because the petition for removal raised only constitutional issues that the Board had no authority to resolve. The court granted removal to give the applicant a final order for purposes of review.

 

The applicant filed a petition for writ of review.

 

The question that was presented was if the Board had jurisdiction to review an Independent medical review on the ground that the underlying utilization review did not use the medical treatment utilization schedule.

 

In Dubon II the Court concluded that a utilization review determination is invalid only if it is untimely. If a utilization review decision is untimely, it is invalid, and is not subject Independent medical review. A dispute over the timeliness of the utilization review decision is a legal dispute within the Board’s jurisdiction, but all other disputes regarding the utilization review decision must be resolved by an independent medical review. If the Board determines that a utilization review decision is untimely, the Board may determine the medical necessity of the proposed treatment based on substantial medical evidence.

 

The applicant challenged the Board’s opinion in Dubon II arguing that the Board has jurisdiction over utilization reviews that are both untimely and procedurally deficient. The argument of the applicant that the Board has jurisdiction in this case is his assertion that the utilization review doctor did not follow the medical treatment utilization schedule, thus did not follow the proper procedure.

 

In this case the applicant utilization review was timely. Nevertheless, the applicant asserts that the Board has jurisdiction over his utilization review because it was materially defective.

 

If a utilization review decision denies or modifies a treatment recommendation based on medical necessity, the employee may request an Independent medical review. A utilization review decision may be reviewed or repealed only by Independent medical review pursuant to 4610.5.

 

The statute provides no exception for materially defective utilization review.

 

The legislature provided only one method for review or appeal of utilization review, that is by Independent medical review. Thus, the Board had no jurisdiction in this case to review the utilization review decision.

 

The Court of Appeal found the applicant had no claim that the Board jurisdiction on one of the grounds allowing review of Independent medical review set forth in the Labor Code as a reason to appeal and of Independent medical review decision to the appeals Board and giving them jurisdiction over that issue.

 

To the extent the Board has jurisdiction to review utilization review, it has only jurisdiction over nonmedical issues such as timeliness.

 

Any question that has effect of assessing medical necessity is a medical question to be conducted by a qualified medical professional by way of Independent medical review.

 

The Labor Code provides that in no event shall Worker’s Compensation administrative law judge, the appeals Board, or any higher court make a determination of medical necessity contrary to the determination.

 

Whether the UR reviewer correctly followed the medical treatment utilization schedule is a question directly related to medical necessity, and is reviewable only by Independent medical review.

 

The task of determining whether the denial was in compliance with the medical treatment utilization schedule is appropriately delegated to the Independent medical reviewer, was better able to determine whether the medical treatment utilization schedule was followed.

 

Statutory scheme presumes that a utilization reviewer relies on an incorrect guideline, not the medical treatment utilization schedule, the mistake will be corrected by Independent medical review because the Independent medical review is also required to be based on medical treatment utilization schedule.

 

In this case the Independent medical reviewer specifically noted that the decision was based on the medical treatment utilization schedule. The rationale for the Independent medical reviewer’s denial was that further acupuncture was not medically necessary because there been no functional improvement.

 

Applicant’s attorney also argues that a medically defective utilization review is an untimely review over which the Board has jurisdiction. The Court of Appeal rejected this argument. There was no dispute over the fact utilization review was performed within the statutory time praying.

 

The Court of Appeal concluded the Board had no jurisdiction to review a utilization review that was alleged to be defective failure to follow the medical treatment utilization schedule. Whether the utilization review follows the medical treatment utilization schedule is directly related to a determination of medical necessity. By statute, review of a determination of medical necessity is limited to the medical professionals performing the Independent medical review.

 

The Board properly dismissed the petition for reconsideration because it had no power to determine whether the utilization review was materially defective and the applicant did not state a proper ground for appeal of the Independent medical review to the Appeals Board.

 

The Court of Appeal went on to find that Independent medical review did not violate the State Separation of powers were Due process of law. The Court of Appeal agreed with the decision in Stevens the WCAB (241 Cal App 4th 1074). The court also concluded Independent Medical Review did not violate federal procedural due process.

 

The order of the WCJ taking matter off calendar was reversed. The WCJ was directed and or order consistent with the use of this decision.

 

Stevens v. Outspoken Enterprises, Inc. (BPD) (45 WCR 147)

 

The WCJ and upheld by the WCAB held that the Appeals Board lacked the power to review an IMR determination of medical necessity absent a showing by clear and convincing evidence that establishes the grounds for appeal under one or more of the five categories listed in Labor Code §4610.6(h).  The WCAB further agreed with the WCJ that they had no authority to determine the constitutionality of the IMR statutes which was raised as an issue by applicant.

 

The applicant filed a Petition for writ of review which was granted by the Court of Appeal

 

The Court of Appeal upheld the constitutionality of the IMR statutes. The Court of Appeal further held that the Appeals Board applied the wrong standard of review of an IMR determination and the that the WCAB had considerable authority to review both factual and legal questions in determining whether an IMR determination was adopted without authority or is based on a plainly erroneous fact not subject to expert opinion.

 

The matter was returned to the WCAB on remittitur from the Court of Appeal, following the Order of the California Supreme Court denying applicants Petition for Review and the Order of the Supreme Court of the United States denying applicants Petition for Writ of Certiorari.

 

The decision of the Court of Appeal remanded the matter to the Appeals Board to consider whether the applicant’s request for housekeeping and personal services was denied without authority.

 

The WCAB on remand held the MTUS is based upon the application of evidence-based medicine to ensure that clinical decision making is guided by the integration of the best available research evidence with clinical expertise and patient values.

 

At issue in this case was the 2009 Guideline, which was applied by the IMR reviewer to determine the medical necessity of the RFA for home healthcare aid.

 

The guideline provided that medical treatment does not include homemaker services like shopping, cleaning, and laundry, and personal care given by home health care aides like bathing, dressing and using the bathroom when this is the only care needed.

 

The WCAB concluded that the Independent Medical Review determination upholding the denial of the request for a home health aide was adopted without authority by the administrative director because the portion of the 2009 medical treatment utilization schedule/chronic pain medical treatment guideline applied in this case provides that housekeeping and personal care services are not forms of medical treatment. This provision is contrary to long-standing worker’s compensation law, which recognizes that such types of non-medical care are forms of medical treatment that may be reasonably required to cure or relieve the effects of an industrial injury. (Smyers v. WCAB, 49 CCC 454).

 

Therefore, the WCAB concluded that the 2009 guideline is unlawful and invalid since it fails to address the medical treatment in the form of personal home care services sought by the applicant.

Because the guideline is contrary to California law and is invalid, the presumption of correctness could not apply.

 

Once the Guideline was found invalid, the WCAB than noted that the requested treatment may be authorized based on recommendations outside of an MTUS guideline where the MTUS presumption of correctness has been controverted by a preponderance of scientific medical evidence establishing that the treatment is reasonable necessary to cure or relief from the effects of the industrial injury.

 

The WCAB further noted that in the review of the utilization review decision, expert opinion may be considered in the determination of whether a requested mode of treatment is medically necessary.

 

In this case the IMR determination relied on a guideline that is invalid and there was no consideration of scientific medical evidence or expert opinion intended to demonstrate the necessity of the recommended treatment.

 

The WCAB concluded that the administrative director exceeded her authority when she adopted the IMR determination in this case.

 

Because this conclusion is contrary to the WCJ’s finding that the administrative director had not exceeded her authority when she adopted the IMR determination, the WCAB rescinded the WCJ’s finding an order denying applicants IMR appeal and returned the matter to the trial level for further proceedings in accordance with the decision.

 

The WCAB further noted that in this case the medical evidence supporting the applicant’s need for home healthcare appears to be compelling. Nevertheless, the appeals Board was precluded from determining the medical necessity of a home healthcare need in this case.

 

On remand to the WCJ the WCAB recognized that the 2009 guideline has been revised since the court issued its decision in this matter, and the current guideline includes home healthcare services. However, the scope of the Board’s determination is limited to the present record and the 2009 guideline, as it is the version that applied in the proceedings below and reviewed by the court.

 

While the WCAB did not consider the merits of the effect of the current guideline, they recognize that it may be applied by a different IMR reviewer in the event there is a remanded to the administrative director.

 

The WCJ may determine whether further hearing is necessary on issues not reached herein, and can consider whether, given the passage of time, further development of the record may be necessary. In the event the WCJ finds that the administrative director determination is reversed, the WCJ may determine what evidence, if any, should be provided to the new IMR reviewer when submitted for review pursuant to Labor Code §4610.6(i).

 

Baker v. Workers’ Compensation Appeals Board (Court of Appeal unpublished, Third District Court of Appeal) (____CCC_____):

 

The Court agreeing with the Appeals Board majority in the case and the Court of Appeal case in Stevens concluded the the 30-day time limit in Lab. § 4610.6(d) for IMR review is directory and not mandatory, therefore, an untimely IMR determination is valid and binding on the parties.

 

The Third District Court of Appeal’s unpublished opinion is practically a restatement of the published opinion issued by the Second District Court of Appeal in State Comp. Ins. Fund v. Workers’ Comp. Appeals Bd. (2016) (81 Cal.Comp.Cases 561).  In that decision, the Court of Appeal concluded (1) the 30-day time limit in Lab. Code section 4610.6(d) is directory, so an untimely IMR determination is valid and binding upon the parties as the final determination of the director; and (2) an injured worker may bring a petition for writ of mandate to compel the Administrative Director of the DWC to issue an IMR determination.

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