Friday, November 8, 2013

How To Keep Me Quiet

“Part of this is growing pains, part of this with IMR is people figuring out what’s going to work and what won’t,” Lach Taylor, acting executive officer of the Commission on Health and Safety and Workers’ Compensation and special counsel to Department of Industrial Relations Director Christine Baker said. “But I’m not sure we’re just going to wait and see.”

Taylor was talking about the unanticipated volume of Independent Medical Review requests at the California Alliance of Self-Insured Groups summit in Sacramento Wednesday.

Taylor also said while some of the IMR requests may not be “in good faith,” claims adjusters can help reduce the volume of applications by making “a little wiser use of UR.”

The Division of Workers' Compensation and its IMR contractor Maximus Federal Services are finding that about one-quarter of the utilization-review determinations are not medically sound and the requested treatment or procedure should have been approved, Taylor said.

One quarter of all UR determinations sent for IMR is a lot of determinations.

“The motivation ought to be there right now for claims administrators to stop bothering to UR-deny a case of 'do you give an $18 heating pad or do you give them six visits of physical therapy,'” he said. “If it’s a $3,000 heating pad, review that one please.”

Again, while we don't know all of the real numbers at this time regarding IMR and its progeny, UR, Taylor's sobering remark should be evidence enough that UR needs some serious re-thinking in the California system. That one quarter of these determinations are not "medically sound" tells me that the "abuse" of the UR/IMR process does not lie entirely with applicants or their attorneys.

There is a battle ground for medical control with UR/IMR as the Gettysburg of comp.

The losers are the injured workers waiting for these ridiculous processes to play out.

And their employers paying more for disability indemnity than is reasonable because the claims administrator is using UR inappropriately.

I would still like to see who all these UR companies are, and who actually owns them - follow the money and you'll find out why one quarter of these UR decisions aren't "medically sound."

Taylor, while noting that part of the backlog with Qualified Medical Examiner requests is that “very few” of the applications contain all the information, made another sobering observation: 

“The fact that [the DWC] are getting so many of them that are wrong either tells me people aren’t really trying or the requirements are unnecessary,” he said. “I think we might want to rethink whether we do panel QMEs in represented cases.” YES!!!

Finally someone near the top who understands the ridiculous nature of the QME process - the requirements in the regulations and forms that so much unnecessary, redundant, and useless information is required in order to request a panel.

Taylor said he was an advocate for how QMEs were used in represented cases before SB 899 introduced the panel concept.

Perfect - an acknowledgement that more regulation does not necessarily result in a better system and that sometimes its better to just let people who are at the ground level every day do their jobs to make the system move along as smoothly as possible.

Prior to the passage of SB 899, each party could pick their own QME and the case would be tried based on the two reports - i.e. battling QMEs. If workers' compensation judges follow evidentiary rules properly, and if the attorneys present their case properly, then most of the time a reasonable result occurs.

Yes there will be cases where results are absurd. Sure, there are going to be times when one or the other of the parties are unhappy with the outcome.

Guess what, that's how life works. It's not perfect all of the time, and in fact rarely is it perfect. The issue is not getting the right result all of the time. The issue is getting a result and moving on.

That's how workers' compensation was designed. And it really can't get much better than that.

Speaking of which, the lien fee injunction case is demonstrating to me that the entire lien process needs to be rethought.

Judge George H. Wu of the U.S. District Court for Central California ordered the parties in Angelotti Chiropractic v. Baker, No. 8:13-CV-01139-GW-JEM, to confer as to the appropriate scope of the preliminary injunction and to submit proposed language for the injunction order to him by Tuesday.

The judge can't decide whether to apply the injunction only to the plaintiffs in the case or to all liens (i.e. a statewide injunction).

In my mind this presents a very rare opportunity for the proponents of lien fees and lien claimant representatives to get together and really come up with a solution to, essentially, get rid of the entire lien process.

And this starts with eliminating senseless provisions of the rules and regulations that declare a lien claimant is not a party to a case until after the injured worker has either settled or been issued an award.

There are two disputes at the heart of work comp cases: those of the injured worker and those of the providers.

Injured workers want their benefits. While provider's payments are derivative of the applicant's rights, nevertheless they are distinctly different in subject matter and scope.

Sure, if services were provided prior to the acceptance of a claim the provider's rights to payment can't be adjudicated.

But once a claim has been accepted by the claims administrator then there is no reason why a provider needs to wait. Having these vendors wait until the end just puts excess pressure on the entire system, kind of like a freeway traffic jam.

If a vendor provides services or goods to a case ultimately adjudicated not compensable then that's too bad for the vendor - they made a bad business decision and should not be rewarded for doing so.

And that includes the provision of medical-legal services. It's a gamble, a business risk. Just because you do something or produce something does not mean you will get paid for it.

There should be a separate vendor dispute resolution process funded by filing fees by BOTH the provider AND the claims administrator - just like in civil court where the plaintiff pays a fee to get heard and the defendant pays a fee to answer; and if the defendant doesn't pay the fee to answer then there is a default judgment and payment is due. And if the vendor doesn't seek adjudication then claim of payment is gone.

The fees could fund the dispute resolution process apart from the injured worker's case in chief once AOE/COE has been determined. If there are issues dependent upon scope, need, or body parts then the vendor will have to wait until those issues are resolved - they can pay the fees, and maybe the wager will pay off or maybe it won't.

And the loser can pay the filing fee of the other party - the loser would be defined by whether or not they got more than what they asked for prior to seeking dispute resolution.

So there you have it. I have resolved California's most pressing workers' compensation dispute resolution problems. Hopefully no one takes my advise seriously though otherwise I wouldn't have much to write about.

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