Procedure Can't Replace Trust

Utilization review and independent medical review in California workers' compensation have come under attack by the applicant's bar, and their arguments are being recognized as legally valid by the Workers' Compensation Appeals Board.

There's the recent en banc decision in Dubon v. World Restoration, and a more recent WCAB panel opinion in Weilmann v. United Temporary Service.

Employer/carrier groups and their representatives are crying foul.

Both groups are seeking appellate consideration of the processes.

Applicant attorneys claim that the IMR process introduced with SB 863 lacks state constitutional foundation and thus is invalid.

They also are carefully scrutinizing every UR denial of treatment for defects, pushing form over substance arguments, and winning.

At the heart of this entire legal wrangling are two very important elements that define California workers' compensation, and perhaps explain why the state's experience is so much different than many other states.

First, there is a HUGE mistrust between payers and beneficiary claimants that use attorneys. This mistrust has been growing for more than 20 years and is getting more acute.

Employer lobbyists and representatives see the applicant attorneys as abusing the system, and taking more out of the system than it was designed for.

They point to statistics that reflect that only 18% of all work comp cases (those that have attorney involvement) comprise 78% of all system costs.

Worker interests counter that they are only ensuring that injured workers get EVERYTHING the law entitles them too - and when they work up a case they are going to turn over every stone to be sure there is nothing left untouched. It's a benefit and a right provided by law - they are ensuring all gets accounted for.

Second, medical control is the key to control of the case. Establishing and maintaining the medical relationship means a much greater chance at a "successful" outcome - i.e. either a great increase, or substantial limitation, in indemnity and other expenses, depending on whether one is applicant or defense.

The WCAB's rulings reflect that judicial officers are not willing to overlook form when it comes to liberally interpreting the law favorable to injured workers (the judicial standard in California work comp disputes).

In the Weilmann case the WCAB ruled that UR decisions issued by doctors who had not signed their decisions and who had not seen the reports of the agreed medical evaluator were invalid. 

The applicant attorneys of course love this decision because there are likely many, many technical, procedural flaws in UR decisions.

Employer/carrier representatives are crying foul, saying that such adherence to procedure over substance will undermine the UR and IMR processes.

Of course both sides decry form over substance (and visa versa) when it suits their arguments.

But what really is happening is: 

1) the WCAB is saying don't be so sloppy; if you are going to challenge a medical request then the applicant/worker/patient is entitled to know who did what, when, why etc. The burden is on the payer to ensure that all procedural details are taken care of because the payer has far more resources than the injured worker.

2) the WCAB clearly recognizes that its job is dispute resolution; that mistrust from years of "reform" has risen to such a level that mere administrative processing where potential life altering events are involved require "listening" and adjudicating.

The applicant attorneys have basically vowed to "chip away" at UR and IMR to ensure medical control and, ergo, increase case valuation/expense.

The practice and application of workers' compensation law has always been sloppy. Now that procedure is such a huge part of the process practitioners can no longer pretend to practice law. They need to pay attention to details and this applies whether you are an attorney, a hearing representative or claims examiner.

That means that defense fees will increase, case expenses will increase, and ultimately objection from the employer community that work comp costs too much.

The reaction will be to try and introduce even more procedural blocks and barricades, which of course is the wrong way to deal with things because:

1) doing so will increase the odds that something will go wrong (like failure to strictly adhere to the procedure), and;
2) will increase mistrust even further.

Listen folks - you all did it to yourselves. The more procedure you introduce, the greater the risk that procedure will be used against you.

This of course goes both ways.

A self-administering benefit delivery system can only be so without all of the layers of cost and delivery system controls.

This requires trust, and the related relinquishment of medical control.

SB 863 was introduced as an example of a new era in employer/employee relations - proponents touted it as a shining example of a new trust between labor and management since all of the other noisy signals were excluded from the conversation until after the governor's signature.

That trust was superficial.