Tuesday, February 3, 2015

Home Care, Home Mods, NOT UR

The California Insurance Guarantee Association has the ignominious job of dealing with claims that no other carrier will, because the claims are from carriers that went out of business and ceded their responsibilities to the state.

CIGA doesn't generate any income on its own, deriving its operating and claims money from carrier assessments, which get passed down to the consumer eventually through the food chain.

So one would not expect CIGA to just pay claims - they have a tight budget. I can understand where utilization review of requested medical treatment would be important to CIGA.

But that doesn't excuse it from doing the right thing.

Such as approving home modification to 100% disabled, wheel chair bound injured workers.

California's 3rd District Court of Appeal will review a case where CIGA sent a home modification request through utilization review, and ultimately whether it should go through independent medical review or let the Workers' Compensation Judge's order stand.

The WCJ determined that UR of a home modification request to accommodate a wheel chair bound injured worker was invalid even though there was no timeliness issue, because the UR didn't address the treatment question posed by the parties - and thus was a "rogue" UR.

Perhaps the bigger question is just what is "medical treatment" subject to such review processes, or who really has jurisdiction over the question at issue?

Don Smith, now 61, had worked as a mill foreman for Cal West Seeds until a heart injury rendered him permanently and totally disabled over a decade ago.

Cal West had carried workers' compensation coverage with Legion Insurance until it went insolvent in 2003.

The California Insurance Guaranty Association then assumed its liabilities.

Over the years, Smith received a motorized wheelchair, mobility scooter and walker through CIGA.

Last March, Smith's doctor requested modifications to Smith's bathroom to accommodate his wheelchair.

CIGA submitted the request for UR, which was conducted by Dr. Samuel Hahn.

Hahn said he saw no reason for Smith to be using a motorized wheelchair. So if Smith didn't need the wheelchair, then he wouldn't have need for a bathroom that could accommodate the wheelchair, Hahn reasoned, and so Hahn denied authorization for the requested home modifications.

This UR opinion was rendered after the Workers' Compensation Appeals Board had issued its opinion in Dubon 1 - which had largely broadened the scope of issues that would make UR invalid - but before Dubon 2 - which limited invalidation of UR to timeliness issues. 

Even still, I argue that a home modification is not "treatment" subject to UR.
Mercado in his TV 4 interview.

Regardless, Smith contested this decision, and the WCJ declared the UR decision invalid last July.

By making a finding as to the necessity of the motorized chair, which was contrary to the position of the parties and outside the scope of the question being presented for UR, the judge said, Hahn failed to answer the actual disputed issue over whether Smith needed better access to the bathroom.

Basically, the WCJ said, UR "did not occur."

The dispute was whether Smith needed the modifications to his bathroom, and since the UR doctor essentially conducted no review on this issue, the WCJ found that the UR decision had to be treated as "a nullity" and that he had to make the findings and the order.

Since it was "clear from the evidence" that Smith has a history of random fainting, and it would be difficult for anyone to reach him and render assistance if he passed out on the floor of his bathroom, the WCJ concluded that a modification to the bathroom was medically necessary and made the order.

CIGA then sought reconsideration, but a WCAB panel denied the carrier's petition last September.

The carrier asked the 3rd DCA to grant a writ of review last November, arguing that Thiessen had exceeded the bounds of the WCAB's jurisdiction over medical treatment disputes.

Curiously, CIGA is involved in another home modification dispute, but this one hit the local news.

In that story, Nicolas Mercado, 54 years old, was rendered a quadriplegic in 2011, when the big rig he was driving for work crashed. He's been living in a care facility in Garden Grove ever since, because his home lacks the modifications to fit his wheelchair.

The issue of home modification has been going back and forth between CIGA and the courts for three years - CIGA seeking appeal each time.

Local news affiliate through NBC got wind of the case, and now Mercado will get his home modifications.

"We've looked into this and we think perhaps we could have taken a different path," CIGA Executive Director Wayne Wilson told the news station in an interview after personally reviewing Mercado's records.

Wilson shouldn't have even had to get involved...

The whole idea of UR is to curtail unreasonable, non-efficacious, and unproven medical treatment.

Modifying a home so that a person permanently reliant on mobility assistive devices can lead a life as reasonably close to "normal" as possible isn't "medical treatment." It's a contracting issue only. 

The up front capital expenditure may be large, but over time paying an assisted living facility, and disrupting a person's family life, will cost a lot more.

And this isn't even a matter of cost - it's a matter of duty and obligation. These aren't trumped up injuries. These are cases of devastating interruptions to life - the kind of matters that workers' compensation was originally designed to deal with, where the disability is known and admitted.

We'll see what the 3rd DCA says. 

What I say is that a home modification request doesn't even belong in UR in the first place. If someone is wheelchair bound as a consequence of an admitted industrial injury, then making one's home accessible is part of the deal.

Simply put - this is the Mom Standard, or in these two cases, the Dad (and grandfather) Standard.

CIGA is wrong in both cases. Mercado is getting his home fixed, and so should Smith.


  1. Since when did the UR reviewer have authority to opine on something he wasn't even asked to opine on? In saying the wheel chair wasn't medically necessary in order to deny the bathroom modification made this reviewer judge jury executioner. If a person had surgery and then a request for a revision surgery gets made because of say complications can the reviewer then say the first surgery was never medically necessary in order to deny the revision surgery?

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