The Assault on IMR: Are the Reports of Expert Reviewers Required to Be Signed?

Response to client question regarding reports of expert reviewers.


Ingber-Weinberg-ColumnsIn the recent wake of the WCAB En Banc decision in Jose Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cas. 313, the IMR process is being very aggressively challenged by some applicants’ attorneys, who are coming up with some interesting contentions and creative strategies designed to defeat and derail IMR. It also perceived by many applicants’ attorneys that the WCAB is a much friendlier venue for a disputed medical treatment issue than Maximus.

Fundamentally, must a UR report be signed by the expert reviewer? As a corollary, is the unsigned UR report therefore deemed a “material procedural defect” as measured by the decision in Dubon?

My position is that the simple answer is “no.” At least for RFA’s made after 1/1/2013 governed by date of injury and for all other RFA’s after 7/1/2013, regardless of date of injury, that UR reports are not considered medical reports. UR reports are unique as they are admissible even without a predicate examination and without the so-called “essential elements” of a medical report, defined under 8 CCR 10606. Therefore, they do not require the same degree of regulatory compliance as those otherwise governing medical reports. For one thing, a UR physician reviewer (expert reviewer) is not conducting an examination, nor is he or she rendering a diagnosis or prescribing any treatment, including medications. Instead, their role is limited and defined within a much narrower context than physicians, who actually see patients, conduct exams and write medical reports. The term “expert reviewer” is defined under 8 CCR 9792.6.1(k). This means a doctor or other medical professional “competent to evaluate the specific clinical issues involved in the medical treatment services and where these services are within the individual’s scope of practice…”

The expert reviewer must be licensed and competent and acting within the scope of his or her practice. Now, the requesting physician must sign the report, but there is no requirement that the expert reviewer sign his or her report. The decision to deny or modify care can, therefore, be signed by the claims administrator. Unlike medical reports, there is no actual requirement that the expert reviewer sign the report.

The UR process is tightly time bound. Prospective decisions must be communicated initially to the requesting physician, by telephone, fax or E mail.

According to the regulations, the written UR determination (decision) must be signed EITHER BY THE CLAIMS ADMINISTRATOR OR THE REVIEWER. (8 CCR 9792.9.1(e)(5)). I would contend that if all of the listed compliance factors are there, including the reasons for the opinion, the basis for the opinions, and the medical criteria used to determine medical necessity, then the sole failure to sign the decision, if not otherwise signed by the Claims AD, is not a fatal defect.

I have a case on removal right now on this issue. Stay tuned.

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