An interesting thing happened at the Independent Medical Review dance - an EMPLOYER appealed a decision approving an injured workers treatment request.
The last statistics from the California Division of Workers' Compensation reflect that 16% of all Utilization Review decisions are overturned in the IMR process.
From what can be seen, when that happens the claims payer simply (and from what I'm told generally quite promptly since the law provide 5 days to get it done) approves and pays for the treatment.
But perhaps in the first instance since SB 863 was signed into law and the IMR process was initiated an employer appealed a decision...
And of course lost.
It's only a trial level opinion, and since IMR can't get past the trial level unless there is some proof of fraud, a reviewer's conflict of interest or a bias on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color or disability, an IMR decision is binding.
And even if an IMR decision does get thrown out by a judge for one of the reasons of defect, the case just goes back into the IMR process - sort of like a guinea pig wheel: just round and round it goes until the rodent gets off.
An appeal can also be based on "a plainly erroneous express or implied finding of fact," and this has been the basis for most of the IMR challenges to date according to reports in WorkCompCentral.
Indeed, this was the grounds cited by the City of Sacramento in challenging the IMR decision to authorize an H-Wave machine for Kirk Crump. The H-Wave is a device that provides a therapeutic form of electrical muscle stimulation and was prescribed from Crump for his chronic shoulder pain from an industrial injury.
The city had argued that there was no evidence that Crump was able to reduce his medication use because of the H-Wave device, so the IMR reviewer had plainly erred in finding this to be a reason to authorize payment for the device.
However, the Workers' Compensation Judge to whom the appeal made its way found that this fact was noted in the progress report from Crump's treating doctor. Thus, the judge concluded in his Sept. 15 order, there was no plain error in the IMR decision.
Of course the debate among litigants in the system is mixed.
Some argue that it's frightening that even when 84% of UR denials are upheld by IMR that employers want to close the gap even further.
Others say that even though the decision was adverse to the employer, it's still another decision where IMR can't be challenged, further cementing the permanent nature of the process.
Still others say that this is just an aberration, that "even a blind squirrel sometimes finds a nut."
|Trust your instruments - what are they saying?|
Really, all this demonstrates is that IMR is still maturing, that users and participants in the system are still adjusting to it, and that even self insured employers need to get used to the idea that they will have to provide treatment they might find ineffectual, inappropriate, or for which they simply don't want to pay for.
In law we tend to talk in terms of "rights" and "liabilities." For instance, many of us may think that we have a right to drive a car on public roads. But we don't - we have only a license, and that privilege, that license, can be revoked by the state at any time.
Likewise in workers' compensation, that law, SB 863, is changing our expectations. We thought we had a "right" to unchallenged, unlimited goods and services under the guise of medical treatment, or that our "liability" to provide treatment would be severely constricted.
Both sides have lessons to learn.
Here's the deal - the system is what it is. We have a law that is on the books. A big segment of the workers' compensation population don't like that law. Another segment of the population does like that law.
It's a harsh law, no doubt. It's a law that changes the dynamics of a long standing cultural premise of workers' compensation - that a person can get whatever medical treatment they desire with no consequence or proof of efficacy.
That cultural premise developed over a period of one hundred years, so it's something that is going to take time to adjust. Expectations don't quickly align with reality in any human endeavor.
It's sort of like flying an airplane when something wrong happens - there is a huge moment of disbelief where the mind says that something is different and that the gauges and numbers aren't adding up like they're supposed to.
That moment of disbelief is distracting - bad things can happen in a moment. It takes training and discipline to cut through the "noise," figure out what all of that information is saying, and take the appropriate action to avoid disaster.
It should not be surprising that an employer appealed an IMR decision favorable to the injured worker, and it should not be surprising that such an appeal failed. IMR hasn't been around long enough for people to "trust the instrument."
The law is decidedly pro-employer in that the logical flow provides for appeals by the injured worker and not really the employer: Labor Code Section 4610.6 requires the employer to authorize a disputed treatment within five days of an IMR determination upholding the request.
But what I want to know is, if the employer failed that 5-day mandate, does it get penalized? That's the follow-on story...
To read the briefing in the case and see the ALJ's order, click here.