Wednesday, July 16, 2014

California Bad Dreamin'

Later today I will be on a panel of other pundits at the California Coalition on Workers' Compensation 12th Annual Conference at the Disneyland Grand California hotel in Anaheim.

"California Dreamin'" is the theme of this year's event, and it seems like an appropriate motif, particularly in light of the state of Utilization Review and it's red headed step child, Independent Medical Review.

"Red headed step child" because the ill conceived, mis-executed, appellate process for medical treatment decisions is being beaten down at the trial level, for now, and likely will have the same results up the judicial review train.

The UR/IMR scheme is being exposed for failures in timeliness, appropriateness, and expediency, driving up costs and disabilities and generally failing to meet industry expectations.

As timely as it could be for purposes of our panel this afternoon, WorkCompCentral published today a story about a case where the UR/IMR process was stricken by a Workers' Compensation Judge for a complete failure in legal standards.

And I think the decision is correct.
Bowzer takes exception to UR/IMR
WCJ Judge John C. Gutierrez of the Van Nuys District Office on Monday ruled that Ralph Loynachan is entitled to 24 sessions of psychotherapy each year for a brain injury he suffered in October 2009 while working for Los Angeles County.

Loynachan had received 24 therapy sessions each year since 2010, but a Sept. 20, 2013, utilization-review decision modified the treatment to six sessions of psychotherapy.

The UR decision said while the treatment is medically necessary, “the relatedness of this condition to the industrial injury has not been determined.”

Let me pause this narrative with a, "Are you kidding me?"

Since when does UR get to decide compensability of treatment? To the utilization reviewer: the law in California is that if an injury is only partially responsible for the need for treatment then the employer/carrier is responsible for ALL of the treatment; treatment can not be apportioned.

Yet the utilization review seems to take it upon his/her own initiative to unilaterally state how much treatment is apportioned to the industrial injury.

Gutierrez said this was a “troubling statement” in light of the fact that the nature of the injuries was already declared to be industrial.

Yep ...

Worse yet, the Dec. 4, 2013, IMR determination upheld the UR decision.

The IMR reviewer, in affirming the UR decision to reduce the number of therapy sessions to six, said the sessions were not medically necessary and appropriate because of a lack of evidence that the sessions “will lead to a complete recovery of functional cognitive learning skills because the mild traumatic brain injury is interfering with cognitive function.”

Pause again - EXCUSE ME?

If the "system" is paying Maximus millions of dollars a year to do the job of properly reviewing treatment appeals, it had damned well better know the law. There is NOTHING in California workers' compensation laws or regulations that require that treatment demonstrate that anything will lead to a "complete recovery."

The correct standard for determining what constitutes reasonable and necessary treatment is not what is “medically necessary and appropriate,” but is what is necessary to “cure or relieve” an injured worker from the effects of an industrial injury. The WCJ got this part of the equation absolutely correct.

Guttierez also took exception with the suggestion that Loynachan wasn’t entitled to the treatment because his condition rendered it less effective than it would be had he not suffered a brain injury.

“For IMR to further state as its rationale for re-affirmation of the UR denial, that applicant’s neurological deficits are interfering with the effectiveness of the psychotherapy sessions is quite demeaning, and contrary to the Official Disability Guidelines, with little regard whatsoever for the dignity of the applicant’s quality of life or, for that matter, the applicant’s mental well-being in preventing further deterioration,” Gutierrez wrote.

However, Gutierrez failed to exercise judicial restraint in his Opinion on Decision, which in my view jeopardizes applicant's appellate success for the case, because he decided to take on the entire SB 863 machine.

“In my opinion, it would appear that our current workers’ compensation laws were guided through the Legislature and devised by a certain capital class and their lobbyists with powerful financial influence, who by their actions do not appear to value the well-being of injured workers, and would rather see the return of the industrial revolution, and rid capital industry of the responsibility placed upon industry by the ‘bargain,’ whereby the current law severely limits access to medical care or treatment; and would prefer to have injured workers and their affected families place their faith and reliance on charity and an injured worker’s rugged individualism in coping with catastrophic economic and residual health effects caused by an industrial injury,” Gutierrez wrote.

The WCJ is entitled to his personal opinion, but it shouldn't be part of a court record, particularly in a case like this one where emotions are high, the stakes are higher, and the rest of the work comp world is looking for some clearly lighted path to reasonableness.

But the picture is being painted for this whole mess to get to the Supreme Court of California at some point in the next few years - and the fact pattern of this case could make it the one that scrapes the IMR system if the defendants decide to challenge the judge, though Guttierez' injudicious dictum might swing appellate review against Loynachan.

Blame it on Maximus, blame it on the applicant attorneys, blame it on the administration, employers, carriers, etc. - it doesn't matter; as experience is gained the promises made by SB 863 proponents for the IMR system is indeed "California Dreamin'."

The reality is that California's version of the UR/IMR is at best a bad dream, but I think it's turning out to be more like a nightmare.

1 comment:

  1. When an entire system is corrupt from the laws that create it being "modified" , to every single loophole or ambiguity in the wording of regulations or legislation then the only corrective action is to junk it all and start over with a blank slate.

    This is the status of the Workers Compensation System in the US today.. State by State, law by law , loophole by loophole, the Insurance Companies and their Lobbyists, their Lawyers, their bought and paid for Representatives in state assemblies have gutted a system which in it's conception violates the Constitution by stealing the workers right to their day in court. The "System" meant to help the worker now works against the worker all but burying the worker in a pile of paperwork and drowning him in a morass of delays that in the end only benefit the Insurance companies. Finally after all the assistance the "System" was supposed to provide have been cut off from the worker with nothing more than a corrupt Dr's collusion with the Insurance company and supported by the Workers Compensation laws which if they haven't been corrupted outright have had their appeals process overwhelmed by a paper storm thrown up by the insurance companies. Workers in need of immediate and continued treatments or therapies have their access to them slammed in their faces while the "System" deals with the Insurance Companies dispute of the claim which allows them to stop all assistance. The loser is the Worker.. and All of Society, since the worker having no other recourse will inevitably end up applying for medicaid and welfare. The Medicare system even acknowledges the Insurance Companies dumping of workers into it's system by grabbing a seat at the Workers Compensation table for a Medicare Set aside - essentially working to make the insurance companies compensate the Medicare system for funds relating to the workers injuries. The insurance companies knowing that Medicare has as many Lawyers and the force of Law on their side don't even bother to dispute any claim Medicare makes in the case instead squeezing the workers share of any settlement ever smaller since the worker with one lawyer working for a cut of the settlement and with no other support is forced to accept whatever scraps they toss him. You see everyone in this "System" can wait.. except for the worker....except the worker.. If Workers Compensation were to disappear tomorrow and Insurance Companies were faced with Lawsuits where the workers could receive compensation for pain and suffering and the Insurance Companies could find themselves facing multimillion dollar payouts that would really compensate the workers for all the costs their injury incurred not just the medical but the emotional and the practical expenses that Workers Comp doesn't even consider. If Insurance companies had to face fines and Contempt citations for delaying payments from a Real world Judge instead of the scolding or at most a slap on the wrist they receive from the WC system... If only... a dream but I know how it would play out... rather than waste funds on harassing injured workers and paying blocks of lawyers to delay or clog the court, or paying off a group of malpracticing Drs for Independent exams that wouldn't last a minute in a real courtroom the Insurance Companies would eagerly come to a mediation or settlement table with more reasonable offers praying to avoid a jury of the workers peers who could see themselves in the injured workers shoes... In other words if Workers Compensation laws across the nation were eliminated tomorrow the days following would see something that WC has been corrupted to eliminate.. JUSTICE