Wednesday, August 14, 2013

IMR, Records and The Unintended Oversight

The following was posted by a represented injured worker in the WorkCompCentral Forums as a letter the editor. The author has confronted an anomalous situation with the new California Independent Medical Review process, not foreseen by legislators or regulators, but which nevertheless presents a significant problem if this process is to succeed in its mission to quickly, efficiently and effectively deal with treatment requests and disputes.

The situation described can be summarized thusly: IMR is requested but there is a lack of records provided to the reviewing physician; while the law allows that the injured worker may provide records, the injured worker is denied records, or is charged for them, by the treating physician's office - ergo the injured worker is not able to make his case for the treatment request to IMR.

The following is his letter to the editor, with minor editing for clarity and grammar.

********************TEXT OF LETTER********************

The new IMR process is not fair for California injured workers

by injured7825 on Mon Aug 12, 2013 9:09 am

I am writing this letter in regards to the new IMR process that was enacted with SB 863. I am a represented injured worker who has deep concerns about how I will be able to get medical records to the IMR.

This is my situation. My primary treating physician’s office charges me $35 to get my report. Since I cannot be copied on these reports I have no idea when they are actually written or sent to utilization review. I have a secondary doctor who is a pain management doctor, and their office policy is not to give reports to the injured worker. Again, I have no idea after my exam when the report will be transcribed or sent to utilization review. Both doctor’s offices cannot “cc” me on my reports, as I have requested. My attorney is very busy as well, so getting reports sent to me can be challenging. I do not have a complete file of my records. I would think most represented injured workers do not have copies of all their medical reports and tests.

With the new IMR process there are strict deadlines for sending the request for IMR and the records accompanying them. I am aware that the requesting doctor, injured worker, applicant attorney and claims adjuster can send records. The temporary guidelines do state the claims adjuster must send the past 6 months of records. A study of the IMR results has shown that some claims adjusters are in fact not sending the records.

This was reviewed by a judge who did not overturn those IMR denials even after it was found records were not sent. The claims adjuster also did not receive a fine for not sending the records. HOW could that happen as fines were listed against claims adjusters who do not send records to the IMR doctor? Now claims adjusters know they will not be penalized for not sending relevant records to the IMR, or any records. You now have a fox in the henhouse situation, with patient’s health at stake.

How is it a fair system for injured workers who are represented and do not have access to their medical records and/or do not receive them timely? I have heard of some applicant attorneys who are sending the records, however many are too busy. There is no such rule that state’s they have to. They also do not get paid to do so. I have discussed this with other injured workers and they are in the SAME situation as I am. Can the system be fair if we do not have access to our records if the claims adjuster does not have to follow the rules and send the records?

I am also concerned at the amount of records the guidelines state have to be sent. I have read it was one year, and then I read it was six months. For many injured workers, they have important test results that should be sent, that go beyond those dates. For a spinal injury for example, we do not get MRIs every six months, or a year. For injured workers who have secondary conditions such as urological, tests such as urodynamic and cystoscopy may only be done once in a claim. These are tests that can not nor should be done yearly. If that injured worker had those tests two years prior, which showed significant damage, the claims adjuster does not have to send them per the temporary rules. How would that IMR review be fair to the injured worker who desperately needed surgery to restore bladder function, but those records were not sent?

There is another problem with this new process that no one seems to be addressing. Many times the claims adjuster does not send the doctor’s request to UR in the first place. What does an injured worker do in that situation? He cannot even request an IMR until there is a UR denial.

I am asking this as many of my doctor’s requests are not sent by my adjuster to UR, and not approved by her either. I have talked to other injured workers and this happens all the time to them too. One recently had their doctor request spinal surgery. The adjuster did not send it to UR, and did not approve it.

I know very well that applicant attorneys are supposed to take non-compliant requests that were not sent to UR to an expedited hearing. From my own personal experience, and talking to many other injured workers, that does not happen. Applicant attorneys cannot take all non-compliant UR issues to court. They do not have the time and don't get paid to do so.

There are countless injured workers who are not aware of their rights or the new IMR laws. I am aware that injured workers will receive notification of their rights to request an IMR after they receive a UR denial. I believe MOST injured workers in California are not aware of SB 863 and the complicated IMR process. Yes, it is on the state’s web-page however many injured workers either do not have access to that or are even aware where that site is.

I think the state should send out a booklet about the IMR process to all California injured workers giving a detailed explanation of how to request an IMR, their rights to send medical records and how to get access to their medical records. If they are not holding claims adjusters accountable for not sending records, they need to find a way to copy reports to represented injured workers, and send them a copy of past records.

The bottom line is an injured worker will have to be copied on their doctor’s reports and tests and if they are aware of how the new IMR program works with being able to also submit records to the IMR reviewer they can defend themselves since the claims adjuster will not always send the requested records for a proper IMR review. An injured worker who is represented has a hard time obtaining their medical records and when some claims adjusters are not following the law by sending the records (even after the IMR reviewing doctor had ask for them) there is little chance of getting the proper medical treatment authorized with a 65% denial rate going on with the IMR.

If the State of California is going to also ask the injured worker to send records as well as the adjusters for the new IMR then all injured workers should by law also be copied as well as the adjusters and attorneys, for the system to be fair and not one sided for the insurance companies.

********************END TEXT OF LETTER********************

This letter to the editor could not have been more timely, as the Workers' Compensation Appeals Board seeks comments on pending regulations on procedural rules involving IMR.

The comments received by the WCAB are predictable. Employer and carrier groups object to the regulations as overly broad, with enforcement mechanisms and penalties that are too harsh.

Medical providers and the applicant attorneys say the exact opposite.

That means to me that the WCAB has it right and reflects a little lesson from negotiations classes in law school - if any one side or the other is happy with the deal then it is not fair, but if both sides express discontent then you know that neither side gets an unfair advantage.

This injured worker makes a very good point and is a succinct lesson in what Mark Walls of Marsh said recently in an article published in Business Insurance - we need to return to basics.

In this sense, basics means remembering the object of workers' compensation is to ensure that injured workers receive treatment and indemnity as appropriate.

injured7825 reminds us that once an injured worker submits to the workers' compensation system, he or she loses all essential control over his or her destiny to the point that even his or her own medical records may not be available.

The fight over what the WCAB promulgates as procedural regulation is another special interests battle over control. The injured worker gets lost in the arguments.

I think the WCAB has much of the regulatory detail right. The employer/carrier community don't like them; the medical community doesn't like them; attorneys don't like them.



  1. This is the exact system the carriers and employers want. If it is to hard to get treatment, the injured worker will receive treatment through obamacare and not make a WC claim.

  2. You can try, but legislating "good behavior" by the payers and providers is problematic.

    Steven Feinberg, MD

  3. A couple of comments after having read you blog and the ‘Letter to the Editor’ – neither address the whole IMR / UR issue. But I do think it brings up some other salient points. Please bear with me.

    The first thing that struck me was that the ‘injured worker’ became (several times) an apologist for his Applicant Attorney (AA) – saying that he was ‘too busy’ and ‘didn’t get paid for that’.

    Actually, Yes – they do get paid for that. The AA’s compensation is different from the Defense Attorney’s (DA). The AA is paid on a contingency whereas the DA gets hourly compensation from the carrier. Whether it is ‘not enough’ or ‘too much’ is not the issue. It is the compensation scheme the AA agreed to – in fact eagerly sought out. The fact that the AA has to do extra work, and perhaps has a busy schedule otherwise, isn’t a factor. The AA has a professional duty to his client to represent him fully.

    Given the circumstances, it might serve the injured worker (IW) to substitute his attorney out and represent himself. I’m not sure how far he would get with that (I’m not versed in the legal side of work comp), but it seems to me it couldn’t be any worse. It is disappointing that the ‘system’ doesn’t provide an IW the outcomes they want, when they want them – but, it is a system that provides access and redress. Everyone has to work within the system. Some are better at it than others and some probably do ‘game’ the system to their advantage. But I think we could safely say the same about every other system – be it Social Security, MediCare, the IRS, or the DMV.

    Since the IW was anonymous, I don’t have the full picture. But, absent any concrete information, I would at least consider that the Letter to the Editor could be an AA’s political writings ala Ben Franklin’s ‘ Mrs. Silence Dogood’ – particularly give the ‘pass’ they gave the AA for poor performance. It sounded to me as though the AA was the ‘victim’ instead of the IW.

    Secondly, I understand it is difficult to get medical records from either the treating physicians or the adjusters. There’s no concrete rules on that and everyone tends to err on the side of safety – for themselves.

    I do have a suggestion on how the IW can achieve this – he can work on this in cooperation with his employer. The rights granted to an employer under Section 3762 of the Labor Code will be sufficient to obtain the medical documentation needed. An enlightened view by both the employer and the injured worker will serve both parties.

    I’ve used this many times in the past to obtain medical information from the insurance carrier that would help the employer understand and resolve an open work comp claim. Usually, I don’t get the information from the ‘front line’ personnel (adjusters). But a short hike up the chain of command has always gotten me the results I’m looking for.

    There is no reason both parties (including the AA) can’t have an open and honest dialogue given that everyone wants to resolve the claim, get the injured worker the benefits they are entitled to, and (most important for the employer) get the claim closed.

    Again, this is a bit ‘off message’, but I think the system isn’t quite as ‘broke’ as it might appear. Both parties – injured workers and employers – still have avenues to resolve these issues. Those avenues of recourse existed long before SB863 and SB899 and still prevail.

  4. I'm not sure what world Bill lives in but in the real world, it doesn't quite work the way it should work.

    If you can't get the records from your MD, attorney, or the adjuster, I suggest that you send a letter along with the IMR application explaining your disagrement with the UR denial. In that letter, list the records (Name of doctor, date of report/evaluation/request) that the IMR should review but that you are not able to secure. That way, the IMR reviewer will have to ask for it. If the adjuster does not send it, it will be grounds for appeal if IMR does not rule in your favor.

    Also, if the adjuster doesn't follow the law, I recommend you file written complaints. Failure to submit treatment requests to UR (with the exception of disputed body parts)is a violation of Labor Code 4610. Written complaints about UR violations can be submitted to the Medical Unit, the DWC website has the complaint form (DWC UR-1). Rouge adjusters not following the law can be reported to the Audit Unit. Again, the DWC website has the form (DWC AU-906).

    If either the Medical Unit or the Audit Unit gets enough complaints about a particular adjuster/insurance company, they may do an audit, and hopefully levy the appropriate sanctions/penalties, etc....

    If the employer is self-insured, there is a corresponding Office of the Director - Administration of Self-Insured Plans with similar complaint procedures.

    Unfortunately, rouge adjusters only learn when their files are audited and the company is penalized/sanctioned, and when their jobs are on the line.