IMR Under Full Assault
SUBJECT: IMR UNDER FULL ASSAULT
In our last Client Bulletin (2/28/2014), we discussed the En Banc decision in Jose Dubon v. World Restoration, Inc., (2014) 79 Cal. Comp. Cas. 313, in which the WCAB held that a utilization review denial was deemed to be rendered invalid if it was either untimely or otherwise suffered from “material procedural defects that undermine the integrity of the UR decision.” At the same time, the WCAB affirmed those UR decisions which suffered only from “minor technical or immaterial defects,” and hence these would be fully resolvable only under the IMR process.
Since that time, there have been at least two further reported WCAB Panel Decisions and even a full blown attack on the constitutionality of the IMR process, launched before the appellate court. And, we are seeing more aggressive tactics from some applicant attorneys, who may feel emboldened by these recent decisions so the “targets” of opportunity with which to attack the IMR process may be expanding.
- WCAB PANEL DECISION: Work Comp Central reported on 4/4/2018 that the WCAB issued a Panel Decision in Weilman v. TIG (ADJ3299212 and ADJ1198812) finding a UR decision invalid, for among other reasons, for the reviewing physicians having failed to sign their reports.[i] The WCAB panel concluded that the failure of the reviewers to sign their reports coupled with the failure by defendant to provide the AME reports to UR (explaining the reasons for the medical necessity of the requested treatment) were “sufficient” to undermine the integrity of the UR decisions and therefore rendering them invalid. (It is unclear whether the WCAB panel would have also upheld their finding of invalidity had the AME reports been provided and the only defect alleged being the “unsigned” UR reports).
- WCAB PANEL DECISION: On 4/21/2014, Lexis/Nexis reported that the WCAB issued a Panel Decision in Manuel Gomez v. Facilities Support Services (ADJ290453).[ii] After a stipulation to injury to “both” knees, there was an RFA for left knee replacement. UR was timely performed by the UR reviewer, who denied the request based upon the ODG Knee Chapter as well as upon the incorrect conclusion that the left knee was not an accepted body part. The WCJ had concluded that the UR process was procedurally defective upon the basis that that defendant had incorrectly asserted to UR that the left knee was a denied body part. The WCAB panel ruled that the issue of “material procedural defects” vs. “minor technical or immaterial defects” should “be first addressed by the WCJ at the trial level in light of the Appeals Board decision in Dubon.” The case was therefore returned to the trial level for further proceedings.
- WRIT OF MANDATE FILED: A well-known applicant’s attorney, Joseph P. Waxman, has filed a writ of mandate and writ of review, asking the 1st District Court of Appeals to find the IMR statute in violation of Article IV Sec. 4 of the California Constitution. Among other things, the constitutional challenge is based upon the contention that under the IMR statutes and regulations, the reviewer is “anonymous,” cannot be cross-examined and that an injured worker cannot have a judicial review of an adverse IMR decision, unless it is based upon very limited grounds.[iii]
MATERIAL PROCEDURAL DEFECT
MINOR TECHNICAL OR IMMATERIAL DEECT
This list is not meant to be exhaustive but simply to illustrate where things seem to be headed and what areas should be scrutinized in the future:
|CLAIMED DEFECT||MATERIAL IMMATERIAL||DISCUSSION|
|UR IS UNTIMELY||X||Strict conformity as to time will be governed by 8 CCR 9792.9.1 and note the rules governing the 5 business day time within which to dispute liability. The time components relate not only to the UR decision making but also to the communication of that decision.
|FAILURE TO PROVIDE RECORDS TO REVIEWER:
|e.g.: relevant AME report or treating report which explains necessity would be deemed important and therefore the failure to send would likely be material.
Omitting a single PR-2 along a string of PR-2’s especially an old one, probably not material but we don’t know
|LISTING OF ALL RECORDS REVIEWED||X||8 CCR 9792.9.1(e)(5)(D)
The concept of “disclosure” is deemed fundamental. The reviewer simply must list every record which was reviewed and considered. This will likely become one of the first “checks” performed by applicant attorneys as they scrutinize the UR decisions.
|EXPLANATION: REASONS FOR DECISION.||X||8 CCR 9792.9.1(e)(5)(F)
Clear, concise explanation of reasons, including clinical reasons and medical criteria. If based upon incomplete information, specifying reasons.
|REVIEWER RAILS TO SIGN REPORT||Headed this way||The Panel Decision in Weilman v. TIG (above) is not citable but it reflects possible trajectory of this issue.|
|FACTUAL ERROR||?||In Gomez, (above) the case is remanded back to the WCJ in order to determine whether the factual error was material or not. (We won’t know the effect of factual errors for quite some time as we will have to wait for further decisions from the WCAB)
|ALL RECORDS CONSIDERED?||X||Reviewer must show that he/she considered all of the records sent to UR, not just that they were reviewed but actually given some consideration. This means they need to be mentioned or incorporated into the decision|
|SCOPE OF REVIEWER’S PRACTIC
SAME SPECIALITY AS PTP?
|8 CCR 9792.9.1(e)(1). The reviewer must be competent to evaluate the specific clinical issues involved AND these are within scope of practice: There is no requirement that the reviewer must be within the same specialty as the PTP or requesting physician. But, you can expect that applicant attorneys will be scrutinizing this for potential issues.
- DEMANDS FOR COPIES OF YOUR UR PLANS: Some applicant attorneys will be making written demands for your Utilization Plan, which is required under 8 CCR 9792.7. They may focus on the section relating to what a non-physician reviewer may or may not do and then claim that in the UR report, this was not sufficiently explained or disclosed. They may claim that any failure to provide the plan on demand constitutes a continuing violation and hence a “material defect” in the UR process.
- DUAL ACTIONS: challenging your UR decisions at the WCAB alleging “invalidity” and therefore forcing treatment issues at the WCAB and not through IMR, but also proceeding to go through the IMR process as a “hedge on the bet.”
- RAISING CONSTITUTIONAL ISSUES: Expect that some applicant attorneys will actually raise the claim that the IMR process is unconstitutional. This can’t be adjudicated at the WCAB, but it could be a “cloud” rising over future trials on the alleged defectiveness of IMR.
- CHECK LISTS: You can well expect that applicant attorneys will have their “check lists” at the ready and these will likely expand over the next several months. They will capture both large and small, every perceived defect in the UR process so as to challenge IMR and therefore try and keep the issue of medical necessity right where they want it; at the WCAB.
- CLAIMING THAT AN ALL UR REPORTS MUST BE SIGNED BY THE REVIEWER OR IT THEY ARE MATERIALLY DEFECTIVE: This issue remains unresolved before the WCAB but the trend is disturbing.
- DEMANDING THAT EVERY UR REPORT MUST BE MADE BY A PHYSICIAN OF THE SAME SPECIALITY AS THE PTP OR REQUESTING PHYSICIAN.
- EXPECT A LOT OF DOR’S FOR EXPEDITED HEARING.
- LETTERS TO THE REVIEWER BY A/A/ CHALLENGING CREDENTIALS, SCOPE OF PRACTICE, MEDICAL LICENSE OR SPECALITY. Letters to this effect could have a chilling effect.
- Stay tuned, since there will be more.
[i] Work Comp Central: “WCAB Panel Says Unsigned UR Decisions are Invalid” (4/4/2014) article by Sherri Okainoto, Legal Reporter
[ii] Lexis/Nexis “Two Noteworthy Panel Decisions on Independent Medical Review , 4/21/2014, Vol. 5, Issue 16;
[iii] Conflict of interest, bias of race, national origin, ethnic group, gender identification, religion, sex, age, sexual orientation, color or disability. (Frances Stevens v. WCAB (2014), ADJ1526353, The grounds for appeal are set forth under Lab C 4616.6, and also include the AD acted without or in excess of powers; the decision was secured by fraud or the reviewer was subject to material conflict of interest or determination was based upon plainly erroneous express or implied finding of fact.