Friday, November 21, 2014

Certain Uncertainty

As the token Californian on the Blogger's Panel at the National Workers' Compensation and Disability Conference in Las Vegas yesterday, I drew fire from moderator Mark Walls, and a bit of derision from my fellow panelists.

"Mark, you know why California is so expensive?" I countered to his question to me about the cost of work comp in California. "Because it's worth it..."

At least I got the most laughter out of the attendees for the session.

But in all seriousness, California's issue isn't that the system is so expensive - as I implied to the audience in my quip to Walls: the state has always ranked high relative to costs.

That's not the issue. The issue is whether the California system delivers adequate and timely benefits to injured workers at a reasonable cost to employers. It doesn't have to be the cheapest, it doesn't have to deliver the most.

It just has to be reasonable, and in order to be reasonable it must be consistent, dependable, reliable; in other words, certain.

Utilization Review (and Independent Medical Review) is one of those things that was intended to bring some certainty to the medical treatment delivery process, but as we have seen that mission doesn't seem to be making it into operations.

Yesterday the Workers' Compensation Appeals Board certified an opinion as "Significant Panel," meaning it can be citable authority, about UR again, reinforcing the concepts discussed in the WCAB's second Dubon opinion about timeliness of a UR request: that a UR decision made within the time frame allowed by the Rules of the Administrative Director, but issued to the worker one day too late, is invalid.

Ergo, the WCAB gets to decide the necessity of the medical treatment at issue.

In Bodam v. San Bernardino County, Timothy Bodam was injured on March 24, 2011.

His primary treating physician referred him for a consultation with orthopaedic surgeon Wayne K. Cheng.

After examining Bodam, Dr. Cheng determined that surgery would improve his condition and on Oct. 28, 2013, he faxed a request to the county's adjuster for authorization to perform a three-level fusion.

The adjuster from the State Compensation Insurance Fund forwarded the request to utilization review that same day.

The reviewer made the decision to deny the request on Oct. 31, but the SCIF did not mail written denial letters to Cheng, Bodam and Bodam's attorney until Nov. 5.

Labor Code Section 4610 requires a payer to issue a UR decision on a request for prospective treatment within five days from the point in which the reviewer receives the necessary information to issue a decision. Thus, the UR decision on Cheng's request – coming three days after the request was submitted – clearly was timely.

However Section 4610(g)(3)(A) imposes further mandatory time requirements for communicating a UR decision, obligating the payer to communicate the UR decision to the requesting doctor within 24 hours of the decision.

The statute also requires that this initial notification be followed by a written notice within two business days.

The board panel said that Section 4610(g)(3)(A)'s 24-hour time limit begins to run from the date the UR decision is made, even if the UR decision is made in less than five days.

As there was no evidence that SCIF informed Dr. Cheng of the UR denial within 24 hours of the decision being made on Oct. 31, the WCAB said that the decision was "untimely and invalid for that reason."

The decision was also untimely because the written notice didn't get sent within two business days after the decision was made, the board added.

Okay, so now the courts get to decide whether or not medical treatment is reasonable and necessary, but what the Boden case is really about is the failure of the system to meet the mission; the Boden case is all about failing to deliver medical care, and costing a whole lot more than is necessary.

Boden was injured 191 weeks ago, almost four years. It took until October 2013 to get to the point where a physician decided surgery was needed. The board didn’t decide on the failed UR until December 2013. Now, here we are, almost a year later trying to decide what the right thing to do is.

SCIF has spent tons of money fighting the obligation to give this poor man the treatment he needs, deserves, and is entitled to. It would have been cheaper to authorize the surgery, particularly if one looks at all of the ancillary costs to the employer (a governmental entity for which its citizens pay taxes so this impacts all citizens) such as lost productivity, employee replacement costs, overtime, etc.

This case is an indictment against The System, against the carriers, and against the medical providers – everyone is complicit and everyone is guilty.

In the end, this poor fellow still doesn’t have what he needs – treatment for a workplace injury.

The WCAB ‘kicked the can down the road’ by requiring additional medical evidence the surgery is necessary. Worse, the ‘burden of proof’ has transferred to the employee.

In the end – nothing was accomplished. The UR rules are the same as they were ten years ago, the WCAB affirmed.

SCIF blew it and I suspect they knew it.

In the end, the injured worker still isn’t going to get the treatment a Board Certified Medical Doctor determined was needed, and the costs have piled up (and continue to pile up).

And there still is no certainty.

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