Medical Treatment and UR (Part 2)

Payne V. Federal Express (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 243):

 

The WCJ issued a finding that they lacked jurisdiction to award medical treatment in the form of an extension of what a weight loss program because applicant had triggered the Independent medical review process by seeking utilization review of a denial of medical treatment and therefore was required to resolve the process by the UR/IMR process even though the parties that entered into a Compromise and Release Agreement in 2003 wherein they agree to utilize an Agreed Medical Evaluator, Mark Mandel M.D., to determine medical necessity for applicants claimed industrial treatment including weight loss.

 

The WCAB reversed the WCJ adopting the analysis set forth in the panel decision in Bertrand (2014 Cal. Wrk. P.D. LEXIS 243).  In that case the WCAB concluded that the terms of the parties’ compromise and release are not vitiated by the new UR/IMR provisions because the terms of a binding settlement agreement cannot be invalidated by subsequent statutory changes.

 

In addition, the appeals Board ruled the applicant did not waive his right to enforce the terms of the settlement by pursuing UR/IMR.

 

 

The WCAB addressed the issue of the Stevens case and noted the party’s agreement in this case to use an Agreed Medical Evaluator to resolve medical disputes was consistent with the underlying purpose of UR/IMR statutory changes discussed in Stevens because it obviated need to litigate future medical treatment disputes through more protracted IMR review and appeal processes.

 

Parrent v. WCAB (W/D) (45 CWCR 63):

 

Applicant sustained an industrial injury to his bilateral upper extremities and settled his worker’s compensation claim by a Stipulation for 64% permanent disability and future medical treatment.

 

A physician within the employer’s MPN diagnosed applicant and submitted a request for authorization for prescription and topical medications.

 

A utilization review physician approved one month of the medication to applicant and to taper off the medication and disallowed the second medication.

 

The injured worker requested independent medical review and the reviewer concluded the treatment was not medically necessary.

 

Applicant filed a declaration of readiness to proceed for a hearing and challenge that the UR decision was invalid because it was reviewed under Labor Code §4610 UR/IMR rather than 4616 (f) (scope of license).

 

The Workers Compensation Judge ruled, following a hearing, that because the parties had stipulated UR had been timely, the WCAB lacked jurisdiction to address the disputed medical issue, which could proceed through the IMR process. The Workers Compensation Judge further ruled that applicant’s participation in defendant’s MPN does not preclude defendant referring an RFA to UR. Applicant filed a petition for reconsideration.

 

The WCAB rejected applicant’s contention that an insurer or permissibly self-insured employer is not entitled disputed medical treatment recommendation from a physician in the MPN to which it had referred applicant for treatment, but must authorize any recommendations submitted by the MPN physician.

 

The MPN system provides an injured worker who disputes the diagnosis or treatment recommendations MPN treating position selected by the employer or a worker-selected treating physician after the first visit with an employer-selected MPN physician, a mechanism to obtain a second, even third, opinion from other MPN physicians consistent with Labor Code §4616(f) provision. They still dissatisfied worker, and after having obtained second and third opinions within the MPN, may request, pursuant to Labor Code §4616.4(b), that the dispute be submitted to an independent medical review physician within the MPN.

 

Pursuant to Labor Code §4610, an employer or insurer that questions the treating physician’s treatment recommendations must pursue its establish UR process, subject IMR, only if the injured worker has disputed UR determination.

 

Commissioner Swayze, concurring, emphasized that by the employer having submitted a dispute over its MPN physician’s treatment recommendation to UR, an injured worker is not precluded from initiating Labor Code §4616.3 second opinion process, or from changing treating physician within the MPN by the employer having submitted a dispute over its MPN physician’s treatment IMR. That is the injured worker disputes the treatment recommended by an MPN treating physician may initiate (1) the usual UR/IMR process or (2) 4616.3 second and third physician process and, if dissatisfied with those physician’s conclusions, then request the MPN/IMR process.

 

The court in the Writ denied opinion concluded that the worker had pointed nothing in the UR statue or their legislative history that showed an employer’s dispute of the treatment recommendation made by a physician and its MPN is exempt from UR under section 4610. The court concluded that nothing in the end and statute suggest that an employer is exempt from UR if it disputes the treatment recommendations made by a physician within its MPN.

 

The Supreme Court denied review as well as the Court of Appeal.

 

Swengel v. Cambridge (BPD) (45 CWCR 38):

 

Applicant’s claims were settled by Stipulations with Request for Award for 43% permanent disability with the right of future medical treatment.

 

Applicant psychologists initially recommended a gym membership which defendant authorized. Since the initial authorization the applicant attended the gym 5 to 6 days per week to engage in pool exercises including water aerobics and swimming.

 

According to the applicant, gym membership greatly benefited her as she lost 40 to 50 pounds since the time was authorized and the other activities are not as effective because they caused her feet to swell.

 

Applicant’s primary treating physician stated that the use the gym membership reduced her need for medications and possibly contributed to her health.

 

An RFA issued in 2014 from applicant’s primary treating physician for a three-month gym membership which was denied by UR on the ground that applicant’s diabetes was not an industrial condition.  Defendant then stipulated to authorize the gym membership for those three months.

 

In November 2015 the primary treating physician filed an RFA for an extension of the gym membership. The UR denied the request on the grounds there was no evidence that applicant could not perform the whole exercise program or why she needed a pool. The denial also stated the gym memberships and pools would not generally being considered medical treatment and therefore not covered by the guidelines.

 

Instead of petitioning for IMR applicant filed a petition to enforce her award and for penalties against defendants for failing to authorize the gym membership.

 

The matter proceeded to trial and the WCJ ruled that submission of the RFA to UR had been improper, observing that the administrative director had, in a separate case, stated the gym memberships are not subject to IMR and that, absence of change in material circumstances, defendant could not discontinue the gym membership.

 

The WCJ awarded applicant attorney fees for enforcing the medical award but not penalties. Defendant filed a petition for reconsideration.

 

The WCAB ruled that the WCJ did not have jurisdiction to review a timely UR denial of a gym membership.

 

Labor Code §4600 defines medical treatment as including services that are recommended by the treating physician as medically necessary to cure or relieve the effects of industrial injury, even if not provided by a medical professional. Cases held a weight loss clinic, housekeeping services and other indirect healthcare services fall within the scope of Labor Code §4600.

 

The WCAB help water aerobics and a gym membership are considered to be medical treatment pursuant to Labor Code §4600.

 

The Board then went on to state that having determined the dispute was subject to UR, there was no dispute regarding the timeliness of the UR determination or that applicant had not filed an IMR repeal.

 

The WCAB distinguished Patterson (79 CCC 910), because in that case defendant unilaterally terminated home healthcare services without submitting that request to UR, but in the instant case to find defendant is obligated to establish a change in circumstances before it can obtain UR is misplaced.

 

In this case defendant properly submitted the RFA to UR and UR’s non-certification triggered the IMR appeals process.

 

Prior authorization for gym memberships were for finite periods of time and those finite authorizations did not bind defendants to approve gym memberships indefinitely. The WCJ had no jurisdiction to determine the reasonable medical necessity the gym membership.

 

The WCAB stated there was no basis for the Appeals Board to invalidate the UR determination and they find no support for applicant’s contention that she is entitled penalties.

 

The WCAB overturned the WCJ’s determination that applicant was entitled to a gym membership and instead ruled that the WCJ did not have jurisdiction to hear the dispute because there was a timely determination that was properly subject to UR.

 

Rodriguez v. Simi Valley Unified School District (BPD) (2017 Cal. Wrk. P.D. LEXIS 671) ( 45 CWCR 19):

 

The treating physician submitted an RFA for a home health-care evaluation and to a request for home health-care services.

The treating physician requested an evaluation regarding home health-care assistance that was denied by UR.

 

Parties disputed whether an evaluation regarding home healthcare assistant was subject to utilization review.

 

The WCAB found that Labor Code §4600(h) requires that home healthcare should be treated like any other form of treatment. The WCAB found no distinction between the UR requirements for an evaluation for medical treatment and actual provision of medical treatment.

 

The WCAB concluded that because the requested evaluation of home health-care assistants constituted medical treatment, it was subject to the UR process.

 

Labor Code §4610, which defines medical treatment and the scope of UR, respectively, section 4600 contains a broad definition of medical treatment, referring to many treatment modalities that are reasonably required to cure or relieve the injured worker from the effects of the industrial injury. Moreover, 4600 specifically addresses home healthcare services and does not differentiate it from other forms of medical treatment.  Labor Code §4610 applies to medical treatment requests made pursuant to 4600 and uses the same medical necessity languages 4600.

 

A request for home health-care evaluation comes logically within the plain language of the statute with their inclusion of home healthcare and medical necessity.

 

To differentiate, from treatment request, evaluative requests, such as for X-Rays -not in and of themselves treatment for any medical condition would place them outside the scope of UR. There have been numerous determinations that medical imaging and certain specialist evaluations to determine scope of treatment are subject to UR.

 

In sum, determining whether this proposed regime (home healthcare) is appropriate is no less medical treatment than actual implementation of the regimen itself.

 

Further, since the request was subject to UR and UR timely denied it, IMR became the dispute resolution mechanism in the WCJ lacked jurisdiction to address the dispute.

 

The WCAB in a footnote to the decision indicated that a home health-care evaluation could be a medical legal expense, rather than treatment, but did not believe the request at issue was a medical-legal expense.

 

 

Schendel V. B & B Sales (BPD) (45 CWCR 41):

 

Applicant sustained an industrial injury to his knees and back in July 1998.  Applicant entered into a stipulation to 45% PD with the right to future medical treatment.  Applicant filed a petition to reopen.

 

Applicant entered into a a second stipulation which also provided for future medical treatment per the reports of two Agreed Medical Evaluators.

Applicant’s primary treating physician submitted a request for medical treatment (RFA) for various drugs he previously prescribed.

 

Defendants submitted the RFA to you are which certified one of the drugs but denied certification of two others.

 

And IMR upheld the denials.

 

At an expedited hearing the applicant questioned defendant’s right to submit the RFA to UR. The parties agreed to have the AME in orthopedic surgery review the UR denials and prepare a medical report. The physician did not reevaluate the applicant who he had previously examined 2003, but indicated that two drugs should be provided.

 

The WCJ then determined that defendant was obligated to provide the prescription medications because of the Stipulation that had previously entered into and that defendant waived the UR/IMR procedure, the parties having agreed to submit the UR denials to the Agreed Medical Evaluator.

 

Defendant contended that the submission to the AME had been for review, not for determination, and filed a petition for reconsideration arguing the WCJ lacked jurisdiction over the medical treatment issue because there was a timely UR denial upheld by IMR. The defendants argued the prior stipulation did not constitute a waiver. Defendants also argue that because prescription drugs are for finite periods they should not be treated as other more indefinite forms of medical treatment. Finally, defendant argued the AME’s report did not rebut the MTUS.

 

The WCAB ruled that defendants agreed to submit the UR denial to the Agreed Medical Evaluator and report regarding the necessity prescription drugs.

 

The WCAB cited the case of Bertrand v. County of Orange (42 CWCR 201) in which the Board held that the IMR process for reviewing a UR denial of medical treatment may be Agreed Medical Evaluator and that once the medical treatment dispute arose through the UR denial, defendant agreed to return to the agreed Medical Evaluator resolve the issue.

 

The WCAB majority did not discuss defendant’s argument regarding the allegation that the opinion from the AME did not satisfy the MTUS and substantial medical evidence standards.

The panel did not address the question of whether a change in circumstances existed, instead relying on the Stipulation and the January 6, 2016 minutes of hearing to rule that applicant was bound to follow the opinion of the Agreed Medical Evaluator.

 

The WCAB majority denied defendant’s petition for reconsideration and upheld the judges award of the prescription medication and its accordance with the report of the Agreed Medical Evaluator.

 

A dissenting Commissioner agreed that defendant was bound to submit the medical treatment dispute to the Agreed Medical Evaluator, but declined to agree that the majority opinion was sufficient to support a finding of reasonable medical necessity under the MTUS.  The Commissioner deemed the AME’s opinion was not based on substantial medical evidence and not in compliance with the MTUS guidelines, which would have required the AME to re-evaluate applicant, review all the inter medical reports, and expressly addressed whether the prescription met the guidelines. She noted the AME said he would need to review a fuller version of applicant’s pain management records to make more specific recommendation on the need for medications.

 

The majority did not deal with the issue if the parties had to return to the AME based on the Stipulated award but ruled only on the stipulation agreed to at the hearing and contained in the minutes of the hearing.

Juan Rivas, Applicant v. North American Trailer (BPD) (2016 Cal. Wrk. Comp. P.D. LEXIS 572)

The WCAB ruled that applicant properly designated Kenneth K. Wogensen, M.D., employed by Casa Colina Transitional Living Center (Casa Colina), as his primary treating physician within defendant’s MPN,

Dr. Wogensen was not listed as individual physician in MPN, however Casa Colina was listed as being within the employers MPN.

The WCAB held that applicant was entitled to medical treatment requested by Dr. Wogensen to cure or relieve effects of his 10/16/2015 admitted injury to his head, brain, neck, ears, and eyes, including 60 days of post-acute physical rehabilitation at Casa Colina.

The WCAB concluded that Casa Colina was listed in defendant’s MPN, and the WCAB reasoned that under Labor Code §4616(a)(3) and 8 Cal. Code Reg. § 9767.5.1, medical groups may be members of MPN and may employ services of physicians who do not register individually with MPN, such as Dr. Wogensen.

The applicant’s designation of Dr. Wogensen as his primary treating physician specifically referred to Casa Colina, and evidence established Dr. Wogensen, in rendering treatment to applicant, acted only through Casa Colina and not in his capacity as individual physician,

The WCAB rejected defendant’s assertion that Casa Colina was hospital that could only provide treatment upon referral from individual member of MPN.  The WCAB stated this allegation was contradicted by description of Casa Colina in defendant’s MPN listing stating that Casa Colina was in the MPN for purpose of providing inpatient and outpatient treatment in areas that expressly included rehabilitation from brain injury, and that no referral was required for this kind of treatment;

The WCAB found that since Dr. Wogensen was properly designated treating physician, defendant was required to conduct utilization review under Labor Code §4610 before denying authorization for treatment requested by Dr. Wogensen.

Because defendant failed to do so, WCAB had jurisdiction to decide medical dispute, and that reports of Dr. Wogensen and Dr. David R. Patterson, M.D., another Casa Colina physician who treated applicant, were substantial evidence to support award of requested treatment.

Esperanza Sanchez v. Dunlap Manufacturing Inc. (BPD) 2016 Cal. Wrk. Comp. P.D. LEXIS 407):

The WCJ found that defendant did not timely serve utilization review (UR) decision pursuant to timeframes in Labor Code §4610(g)(1) and (g)(3)(A), and 8 Cal. Code Reg. § 9792.9.1(e)(3), which require that UR decision be timely made and timely communicated.

The WCAB agreed with the WCJ who found the UR determination was not timely communicated when the determination was sent to the applicant and the requesting physician within specified timeframes, but was not served on applicant’s attorney pursuant to 8 Cal. Code Reg. §10510.

However, the WCAB rejected the WCJ’s conclusion that defendant’s failure to serve copy of request for authorization (RFA) on applicant attorney created adverse inference that RFA established reasonableness and necessity of medical treatment in form of corticosteroid injection to applicant’s right wrist and eight sessions of physical therapy.

The WCAB concluded that the only medical evidence on record in this case addressing reasonableness and necessity of requested medical treatment was copy of defendant’s UR decision.

The WCAB held that even if defendant does not timely complete UR, injured employee must still prove that requested treatment is medically reasonable and necessary by demonstrating that treatment request is consistent with uniform guidelines or, alternatively, rebutting application of guidelines with preponderance of scientific medical evidence,

Although an RFA is a medical report and should have been served on counsel, there was no evidence that defendant’s failure to serve RFA, or produce a copy of RFA at trial in this case, constituted willful suppression of evidence, and that without any evidence to indicate whether defendant willfully suppressed production of evidence and absent evidence regarding whether requested medical treatment was reasonable and necessary, further proceedings at trial level were necessary.

Weimer v. Hillyard Inc. (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 104) (45 CWCR 73):

The treating physician submitted an RFA for various medications with an incorrect claim number.

The claims administrator sent the RFA to the treating physician marked “INCOMPLETE request for MED” and indicated the claim number was incorrect.

The WCAB ruled that rule 9792.6 .1 (t) does not require the inclusion of a claim number, but the Appeals Board added that it would be prudent to include an accurate claim number in every RFA to effectively identify the employee.

 

 

The WCAB found that while the RFA included an inaccurate number, the claims adjuster correctly identified the employee and claim number on the day the RFA was received. Because the RFA successfully identify the employee to the claims administrator, the defendant received information reasonable and necessary to make the determination when it receives the RFA form.

The Appeals Board found the UR determination to be on timely giving the WCAB jurisdiction to cite the medical issue.

Puente v. Napa Valley Unified School District (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 100):

The WCJ found that a defendant’s MPN was inadequate and did not meet the minimum access standards because there were only two pain management doctors within 30 minutes or 15 miles of applicant’s residence or workplace.

Defendant filed a Petition for Reconsideration.

The WCAB found that the rules provided different access standards depending on whether the care is provided by a “primary treating physician” or by a “specialist”.

The WCAB indicated that the MPN must provide a list of at least three physicians competent to treat injuries commonly experienced by employees. They must be identified through their provider code is primary treating physicians willing to serve in that role, and they must be within the 15 mile/30-minute radius mandated by rule 9767.5 (a) (1) of the applicant’s residence or workplace.

If the applicant selects a physician who is identified as a specialist, but who is not listed his or her availability as a primary treating physician, the greater access standards for 30 miles and 60 minutes for specialist will apply pursuant to rule 9767.5 (a) (2).

The WCAB added that defendant was not obligated to have three pain management specialists within the closer radius in the access standards, but the MPN must have, within 15-mile/30-minute radius, three physicians with an appropriate specialty to provide ongoing primary care for the applicant’s injury and are willing to serve as her primary treating physician.

If a physician who is not trained in the applicant’s preferred specialty or subspecialty is selected as the primary treating physician, and he or she identifies the need for additional care from a specialist, the MPN must provide an adequate selection of appropriate specialists within a 30-mile/60-minute radius of the applicant’s residence or workplace, or the MPN must permit the applicant to seek care outside the MPN.

The WCAB remanded the matter for the WCJ to determine whether the defendant’s MPN met the access standards for selection of a primary treating physician with an appropriate specialty to treat applicant’s industrial injury.

 

 

Mata v. Supermercado Mi Tierra (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 166):

 

The WCJ found that the applicant suffered an industrial injury to his neck, back, and on April 15, 2016 was entitled to cervical fusion surgery approved bind defendant’s utilization review process.

 

Defendant filed a Petition for Reconsideration.

 

The WCAB agreed with the WCJ.

 

The WCAB found no merit to defendant’s contention that deferral of the utilization review approved neck surgery was appropriate based on the fact defendant was contesting whether the need for cervical fusion was caused by applicant’s industrial injury to his neck or pre-existing condition.

 

Because defendant did not act timely within the five-day time frame (§9792.9 .1(b) (1)) to defer liability for the recommended treatment, once the defendant decides to proceed with utilization review rather than defer, they cannot later to decide to delay medical treatment approved by the utilization process that it is disputing industrial injury.

 

Because defendant in this case accepted liability for applicant’s neck and the recommended surgery was certified by utilization review there was no basis for den defendants failed surgery.

 

De La Garza  v. Roll Global/Del Rey Juice Plant dba POM Wonderful (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 61):

 

The WCJ issued an order directing defendant to authorize surgical treatment recommended by applicant’s primary treating physician because surgical treatment was certified by a June 3, 2016 utilization review and the WCJ found no justification for defendant’s withdrawal of the utilization review certification on the basis the same treatment had been denied by utilization review on May 20, 2016 because that denial was effective for 12 months absent change in material facts relating to applicant’s condition based on Labor Code §4610(g)(6) and Reg. 9792.9 (o).

 

The WCAB affirmed the WCJ based on the fact the first request for treatment was made on the mistaken belief that the requested treatment was solely for cosmetic purposes and was not supported by the MTUS, however the treatment was subsequently certified by the physician clarifying the procedure was not cosmetic purposes, but was rather required to alleviate pain so he skated with applicant’s burn injury and to restore functionality to his arm.

 

The WCAB reasoned that with respect to whether the new utilization review issued within 12 months was valid, the WCAB indicated that the meaning of the phrase “a documented change in the facts material to the basis of the utilization review decision” that to the extent the physician’s initial utilization review was premised upon incorrect assumption as to purpose surgery, there was a documented change in facts material to the basis for the UR decision.

 

When the physician was made aware of the mistaken belief by receiving a report from the primary treating physician and a new RFA was issued, that even assuming the resubmitted RFA is not technically proper because one-year had not yet expired, there is nothing that prohibits the claims adjuster from accepting and acting on a utilization review that is resubmitted prior to such expiration, and that, here the claims adjusters decision to treat the RFA as a proper request for treatment and submitted to utilization review was consistent with the overreaching legislative purpose in enacting the utilization review process “to ensure quality, standardized medical care for workers in a prompt and expeditious manner”, and to allow the physician, rather than the claims adjuster to make decisions regarding injured workers medical treatment.

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