Capitate It

Workers' compensation medicine is often critiqued against general health medicine, the implication that general health does things better.

And to an extent that is correct. General health medicine coverage, in general, seems to turn out better patient satisfaction, greater physician participation, and overall less acrimony.

But a huge difference between work comp and general health is that work comp is "first dollar" for the most part - meaning that work comp pays right off the bat. There is no co-pay, no deductible, etc.

Also, whether it is because of tradition, technology, culture, politics, or whatever, but work comp is for the most part a fee for service system. A provider performs a certain function, denotes its billing code, and gets paid whatever the system says that code is worth.

General health is moving away from that model towards a "capitation" model. Basically that model makes a one time payment per "population" that is assumed to require a certain level of service. Incentives for quality and outcomes are built in, and measurements are required to adjust the cap level.

Brent James, MD and Gregory Poulsen in the July-August issue of the Harvard Business Review make a Case for Capitation, outlining how such incentives can be built, monitored and deployed to the benefit of everyone: patients, providers and payers.

There are some elements that could be applied to workers' compensation.

The University of California, Los Angeles and R&Q Healthcare have partnered on a limited capitated plan for a select service: outpatient treatment for pain and addiction.

UCLA provides the service, R&Q does the selling.

The benefits are that uncertainties regarding treatment cost are reduced, and longer term, payers should see reduced claim costs as the injured worker’s drug use decreases.

I might add, that if an injured worker's addiction to opiates is the product of workers' compensation treatment the system has a moral obligation to reverse that...

William Lape, chief executive officer of R&Q Healthcare Interests. He told WorkCompCentral the capitation model turns the tables on the traditional workers’ comp system in which a provider outlines a course of treatment and then faces challenges from the payer for anything that seems inappropriate.

“What we’ve done is reverse that,” Lape said. “It’s not the way workers’ comp is used to doing it.”

Indeed, physicians interviewed by WorkCompCentral for the story were pleasantly surprised, saying they would welcome a system where each treatment request wasn't second guessed or challenged by the payer.

Before a payer commits to the program, the injured worker is sent to a free, in-person evaluation to assess various factors, including whether the claimant wants to reduce her dependence on painkillers.

If the claimant seems to be a good fit for the program, the payer can enter an agreement for up to six months of outpatient treatment. The maximum price is capped, Lape said, but if the cap is not reached, the payer will pay for only the services used.

The program can also be customized to a degree. For example, if the injured worker needs detoxification before entering the outpatient program, that service can be added, Lape said. And if an injured worker drops out midway through the program, she'll have one opportunity to re-enter.

There are other capitated or bundled payment programs around the country, though not many.

It seems like nirvana, and that's because capitated programs are, for now, of limited application, ergo value. The models have to be refined for various injury treatment scenarios to ensure that incentives are properly placed and deployed.

But I think capitated plans are the future of medical care, and in particular workers' compensation. We'll see more of this as experience is gained.

Medical Standards

The Journal of Occupational and Environmental Medicine has published a study confirming the assumption that medical treatment in accordance with the current suite of published evidence based guidelines results in shorter disability duration and, ergo, better health outcomes for the subject.

The study used 45,951 indemnity claims with two years of development filed between 2008 and 2013 from the Accident Fund, United Heartland, Third Coast Underwriters and CompWest.

A compliance score was devised by comparing diagnosis and treatment codes, and seeing whether Work Loss Data Institute’s UR Advisor product rated the selected treatment as “green flag,” meaning the treatment is recommended for that diagnosis; black flag, meaning denial recommended; red flag when a review of the treatment is advised; and yellow flag if the treatment is allowed on a limited basis. Using a calculation based on how often green or yellow versus black flags appeared, claims were sorted into low-compliance and high-compliance groups.

WLDI provided access to the Official Disability Guidelines database but did not ask the researchers to conduct the study, didn’t participate in it and provided no funding, according to WLDI. The UR Advisor product used in the study is a tool for looking up information in the Official Disability Guidelines, they said.

According to the research, claim duration was 13.2% longer, and medical costs were 37.9% higher for claims in the low-compliance group compared to the high-compliance group. In a subset of the most medically complex claims, duration for the low-compliance group was 18% longer than for the high-compliance group, and medical costs were 38% higher.
More, similar conclusions were made based on the data.

Though the study used ODG, rival publishers were equally enthusiastic about the report and are interested in how the methodology used to test ODG can be applied to other guidelines.

It has always interested me why different jurisdictions have different treatment guidelines since, presumably, all humans possess the same anatomy and biology regardless of location.

Ultimately, the difference between ODG and the American College of Orthopedic and Environmental Medicine guidelines is in the presentation of information and timeliness of incorporation of new research.

Different states, however, essentially succumb to special interests pressure to develop their own guidelines at great expense.

More importantly, though, is that state guidelines will eventually lag behind the research, becoming out of date, because the cost of staffing, reading, cataloging, reviewing, and confirming the vast universe of medical research is too costly, too daunting.

While there is usually a provision in the law for other EBM guidelines to supplant the state presumed default, doing so is thwarted by costs to the subject, or by operation of law.

California is a classic example. There is really no reason for California to have separate guidelines, yet the state continues to rely on its own, antiquated, Medical Treatment Utilization Guidelines. The law provides that the MTUS may be rebutted with other EBM, but if the payer's Utilization Review doesn't accept that argument, and the matter goes to Independent Medical Review, it's over.

Because IMR will follow the MTUS. And, once in the rabbit hole of IMR, there's no getting out.

Other states don't have any guidelines, and the JOEM study is a great argument for those states to adopt one of the standards (and hopefully shy away from the special interests intent on creating their own standards).

For instance, Pennsylvania law makers have before them House Bill 1800, a proposal to adopt “nationally recognized,” evidence-based medical treatment guidelines in workers’ compensation. Opponents say the guidelines are a one-size-fits-all approach to treatment.

Nebraska's attempt failed last year against the same arguments.

Buying into those arguments simply reflects a lack of understanding what treatment guidelines are and ignores the fact that the general health insurance industry has been following guidelines since, basically, forever...

Whether I'm in California, Florida, Arkansas or Alaska, my physiology doesn't change, and neither should treatment protocol.

There has been a lot of talk lately about standards across state lines. Medical treatment protocol should be one of them.

Fixing the Culture

There seems to be some steam building behind a movement that has taken too long to get going: advocacy based claims management.

In short, advocacy based claims management (ABCM) is just doing the right thing.

The movement is spearheaded by top professionals in work comp, and in particular the Alliance of Women in Workers' Compensation, which is hosting a conference in conjunction with the Workers' Compensation Research Institute's annual meeting in Boston on March 9th, titled “Creating an Advocacy-Based Claims Model."

The promo for the related ABCM webinar that will broadcast March 15 reads:

"For years, workers’ compensation has been driven by conflict. Payers often look for ways to dispute claims rather than focusing on finding ways to provide useful benefits for the injured worker. Because of this, injured workers retain attorneys who they feel will protect their interests. This conflict drives up costs within the system and slows the delivery of benefits."

There's probably quite a few of you out there that are saying, "well, duh." Of course workers' compensation's focus on compliance rather than compassion drives up costs - that's a fact that has been well documented for decades.

So what's new now? Why all of a sudden a movement to change that culture and philosophy.

Maybe it's the negative public image of work comp. Maybe it's the threat of some federal oversight and regulation. Maybe it's simply a matter of relevance and survival.

Maybe it's just the right thing to do.

It wouldn't seem that a movement would be necessary given all we know about disputes in work comp, but the anti-claim culture is deeply rooted, and has been cultivated for decades. 

Mistrust is so pervasive in workers' compensation that too often one is guilty until ordered innocent, and by then disabilities (both physical and psychological) have manifested in a profound manner, unfortunately supporting entrenched vendor interests.

The hosts of the webinar, Mark Walls of Safety National and Kimberly George of Sedgwick (full disclosure - both friends of mine), say you'll learn what it is, how it works, what the obstacles are, how to get all of the vendors on board, and ultimately how a business model can be made to support this culture change.

Here's what it all comes down to: offer services TO the injured worker in advance of health and wellness; not services AGAINST the injured worker. Pay now, don't delay. Treat now, don't delay.

Will some people take advantage of this perceived generosity? Sure - they already do though. We punish everyone for the misdeeds of others. Rather than fix the leaking pipe, we shut down the entire water supply...

The fear of entrenched vendor interests, of course, is reduction in the relevancy of one's services. But, as I have said in the past, if you don't like the business of workers' compensation then the prudent business decision would be to take your services and goods to another industry...

Workers' compensation isn't broken and doesn't need fixing. It can work as intended. But we let the design get in the way, a design that has, over years of "reform," misconstrued the intent.

There's a lot of noise between benefits and recipients - noise created in response to design...

ABCM is really about fixing the culture that fosters all of that noise, in spite of design, to get back to intent.

The Whole Picture

Applicant attorney Keith More asked the 800 or so attendees to our panel session at the California Applicant's Attorneys' Association conference Friday for a show of hands: how many had utilization review requests denied based on lack of, or missing, records? (LC 4062(g)(4))

Every person raised a hand. Every single one.

And that didn't count the overflow rooms where our session was broadcast via television to about 300 other attendees.

Sure the crowd represented outliers - litigated cases; less than 20% of all workers' compensation responsible, however, for more than 80% of all system costs.

Truth is, that observation should make one really cringe.

After all, if the system can't comply with the law to ensure relevant medical records get to the reviewing physician when the injured worker has someone looking out for them, then what about that majority who have no idea what's going on, probably don't understand the UR process, and likely aren't savvy enough to realize that the utilization review isn't complete?

We don't know how many unrepresented injured workers are the recipients of failed UR. Heck, we don't know how may represented workers are the recipients of failed UR (though the informal CAAA poll would peg it at 100%).

We don't know how many treatment requests are denied, ultimately, on lack of records, because there's no process in place for capturing such information when workers with or without an attorney are involved.

So while California administrators may be pugnacious in defending statistics favorable towards UR (and IMR) reducing medical costs, the truth is that no one REALLY knows because the vast majority of workers' compensation claimants - the unrepresented - aren't polled or studied.

It just may be that medical treatment savings are simply the product of people just giving up and going away.

The system is obsessive about costs. I'd like to say, let's forget about costs. After all, our cost neurosis is what gets workers' compensation into trouble in the first place.

But we can't. There's only so much to go around.

Costs are important, of course, for budgeting. Budgeting is a necessary discipline anytime there is income and expense to account for. Someone along the chain of financial resources is going to demand an accounting and want to know why something is the way it is.

That makes sense. Money goes in, and money goes out, and someone, somewhere, has to be responsible to make sure that the flow of money is going where it is supposed to.

So be it.

Also along the chain of financial resources are people. Some are benefactors. Others are recipients.

Some are profiteers.

This is America, after all, and the world of workers' compensation falls within the ambit of a capitalist economy, which means along the chain of financial resources there are people that want or must be paid some of that money in order to make things happen the way they are supposed to happen.

Some overstate their value to the system, some understate it, and some don't care what their value is as long as they get a piece of the action.

The point is that there is no reason why there should ever be any lack of documentation to a reviewing physician, other than someone's decision that there's too much paper to copy, too much to mail, too much to review... too much cost in the process.

Editorial decisions on medical records are made by someone along the way to UR; editorial decisions that, in effect, becomes the practice of medicine ... illegally I'd say, if not done by a medical doctor or other professional recognized by the law as authorized to provide medical care and advise.

When I was taught how to cross examine physicians, albeit many years ago, the first and most important tactic was medical history - because medical history is paramount to diagnosis which is paramount to treatment decision.

Without an adequate, accurate, and complete medical history, any medical decision or determination that follows is subject to challenge. Challenge is another word for dispute, which is what causes "friction."

Medical records are the single most common, affordable, and accessible way of communicating past medical history. Failure in records is failure in history. And failure in history is failure in medical expertise. There's oodles of case law confirming this logic.

There's a simple legislative or regulatory fix to the inadequate medical records issue - mandate that all medical records be supplied to the reviewing physician and that failure to do so results in automatic approval of the requested treatment subject to disapproval upon subsequent receipt and review of records (if not too late by then).

In other words, remove the word "reasonably" from Labor Code section 4062. That word is subjective, and one person's reasonable is not another person's.

Whenever there's the possibility of subjective evaluation, there's the probability of dispute. So why do we insist on inserting subjectiveness into a process that clearly requires objectivity? And why do we allow non-medical professionals to editorialize on medical records?

If the reasons are all about costs, then we're not looking at the whole picture.

Paper Irrelevancy

On Friday I quoted blogger and principal of Health Strategy Associates, Joe Paduda, about physician's reticence to complete paperwork.

Paduda opined that physicians would be loath to move claims from general health to work comp because of the extra paper work, stating, "documentation that is perceived by physicians as irrelevant to patient care is the discontent of doctors - seems to me that's the definition of workers' comp."

The latest Texas biennial Performance Based Oversight (PBO) report seems to bear that out - that report showed an alarming minority, up to 25%, of workers' compensation treating physicians surveyed failed to complete or filed required work status reports timely or accurately.

Work status reports and back-to-work documentation are two of four categories under which doctors are assessed through the biennial PBO process for health care providers. Other categories are timeliness in filing medical evaluation forms and filing documents supporting their use of magnetic resonance imaging. Doctors file both forms with insurance carriers and the state Division of Workers' Compensation.

“The measurements that physicians perform the worst on are the administrative requirements of the DWC, rather than the clinical measurements, which physicians score quite well on,” Warren Cooper, the Texas Medical Association's director of health care delivery services, told WorkCompCentral.

83 health care providers were reviewed in the latest PBO report, published Monday, for the timeliness of their medical evaluation reports (DWC Form-069). 61 were high performers, 18 were average performers and four were poor performers.

High, average and poor are defined by regulation.

But, of the 124 health care providers reviewed for the completeness of the work status report (DWC Form-073), 55 were high performers, 38 were average performers and 31 had scores placing them in the poor-performer tier.

The DWC checked the records of those same 124 health care providers to see whether they had proper documentation of the reasons injured employees couldn't return to work.

Of those 124, 62 were high performers, 41 were average performers and 21 were poor performers.

Of the 33 health care providers reviewed for whether they had proper supporting documents for the usage of magnetic resonance imaging for spinal injuries less than 21 days after an injury occurred, 21 were high performers, eight were average performers and four were poor performers.

DWC says it deliberately expanded the number of physicians subject to audit from the last report, nearly doubling the number reviewed for for work-status forms.

To discourage further physician participation in workers' compensation cases, in addition to paperwork they don't want to complete, poor performers are subject to further review and potentially penalties.

I'm being sarcastic of course, and DWC has good intentions - like much in government oversight though, motivation is provided via punitive measures rather than positive incentives.

The other day the Workers' Compensation Research Institute sponsored a webinar debate between retiring president/CEO, Richard Victor, and Paduda - the theme was cost shifting from general health to workers' compensation.

Victor said their data showed it happening. Paduda challenged the premise and the data, and suggested that just as much shift to work comp was also occurring in the opposite direction, providing the quote at the top of this post.

Regardless, it seems to me that Texas would be a great place to do further research on this topic, starting with the physicians that were surveyed in this latest PBO to see how discouraging work comp paperwork, and subsequent discipline assuming poor ratings, motivated a shift to general health if the circumstances permitted.

Even better would be research on how government could meet its need for data while stimulating physicians to provide that information without resorting to de-motivating measures. It would start by formulating forms that physicians would perceive as adding to patient care, rather than the obviously current perception of irrelevancy.

Trees and Forests

It makes sense that the cost of medical services is less in states with fee schedules, and that costs grow slower, than in states without fee schedules.

A recent study by the Workers' Compensation Research Institute confirmed that in a comparison of 31 states.

chart courtesy WCRI, 2015

Prices paid for a similar set of professional services varied significantly across states, ranging from 33% below the 31-state median in Florida to 124% above the 31-state median in Wisconsin in 2013, the study found.

There was also “tremendous variation across states” in price changes from 2008 to 2014, ranging from a 20% reduction in Illinois to a 28% increase in Wisconsin.

States with fee schedules experienced slower growth in prices paid for professional services compared with most states with no fee schedules. The median growth rate among the fee schedule states was 6% from 2008 to 2014, compared with the median growth rate of 17% among the non-fee schedule states.

Also affecting the delivery cost of medical services are networks - network states have lower costs and likewise experience slower cost inflation.

Presumably these findings are good.

Or are they?

Looking at just a small slice of the workers' compensation pie doesn't tell the whole story.

For instance, what is the correlation between lower medical cost states and disability rates, duration and severity?

How quickly are medical services delivered in lower cost states versus higher cost states?

Are premiums affected by medical costs? Or do employers see greater premium impact via other case management techniques, such as imposition of nurse case managers?

How long do medical providers and vendors wait to get paid in low cost states versus higher cost states? Is there any correlation with litigation?

In lower cost states, is more of the pie paid to claimants for wage replacement? Or are cost containment expenses eating up a greater proportion of the pie?

Lots of additional questions, indeed - because at the end of the day there are only two things that matter: does the injured worker get benefits timely and adequately; and does the employer realize good value for its premium dollar?

Studies like this WCRI comparison are good for understanding at a micro-level how certain elements affect performance, but they need to be married up to the macro-view to see if we're really doing our jobs well.

Controlling costs means nothing if those paying into the system, employers, and the intended beneficiaries of the system, injured workers, don't get the value proposed in The Grand Bargain.

Trees make up a forest. Forests make up an eco-system. Lots of things live in that eco-system. Cut down trees and an unknown toll is exacted upon those things.

Old Dog, Old Tricks

What goes around comes around.

TENS, or transcutaneous electrical nerve stimulation, has been around as long as I can recall.

It fell out of favor because there wasn't any valid scientific affirmation that it was effective in reducing pain, and of course, the practice was abused, so the value of the technique was discounted both medically, and remuneratively.

The substitute, like many other conservative pain management techniques, was pills.

Of course, now we have an opioid "crisis" partly of our own making.

Now, coming full circle, we have physicians touting chiropractic as a reasonable pain management tactic, albeit within guideline specifications.

And TENS is also being promoted as another tool in the pain arsenal that can provide some relief.

Healthesystems, a workers’ compensation cost-management company, published results from an anecdotal study indicating that one in four opioid patients can get off the drugs and manage their pain using TENS.

Bowzer's back pain...

The Healthesystems article suggests that TENS is better for "active" pain as opposed to "resting" pain - i.e. the technique is more useful where pain is experienced in movement, as in doing a job.

The American College of Occupational and Environmental Medicine treatment guidelines recommend against TENS as a treatment for acute pain, but say it may be useful as an adjunct treatment for some types of chronic pain.

Similarly, the Official Disability Guidelines from Work Loss Data Institute allow a TENS trial for some types of chronic pain, such as low back pain.

“In general, there’s not a lot of evidence to support TENS,” WLDI President Phil Denniston told WorkCompCentral, acknowledging that it does work for some patients.

And Denniston said anything that can help get patients off of opioid drugs, such as TENS or yoga, is worth considering.

There you go: the more things change, the more things stay the same (and all of the other trite phrases that express similar sentiments).

In other words, what we have learned, is what we already knew: treatments that are palliative, or even just placebos, are less expensive, and less harmful, than managing the penalty of addiction to opiates.

Or, as Bowzer would counsel, you can't teach an old dog new tricks, but you can build upon the foundation.

No More Silos

There's one glaring and obvious conclusion to be reached from the Workers' Compensation Research Institute's latest study finding a great likelihood of case shifting out of group health onto workers' compensation - the silos that have been created throughout the years of various health care systems need to be consolidated into a single system regardless of fault, causation, or jurisdiction.

The only qualifying measure should be employment.

Some may call this universal care, 24 hour care, socialism, whatever - it's the only thing that makes sense.

The reason is that financial incentives definitely influence provider behavior. We have known that for years. It is not a mystery - in fact it completely makes sense and is in line with what behaviorists would expect.

Yes, there are legal issues and practical considerations - these have all been argued and debated for years.

None of those reasons or objections can't be engineered out or at least ameliorated.

The primary reasons why any shifting would occur are two-fold and the first and most important consideration is that it is the primary treating physician who first sees the patient who is going to ask the probing, leading questions, that will determine how an injury or illness "occurred" - i.e. causation.

"The amount of uncertainty about the cause of the medical condition provides the opportunity for the financial incentives to influence the decision," the study summary states.

The second, and perhaps no less important consideration, is that group health plans are moving more towards capitated reimbursement systems, following the Affordable Care Act model, whereas workers' compensation is, by and large, still fee for service. The WCRI theory is that providers would rather be paid by service because they can make more money.

So the obvious answer would be to convert workers' compensation to capitated plans - but doing so runs afoul of workers' compensation's primary medical promise: treatment for life; ergo, a capitated plan in workers' compensation would alienate more providers than even low fee schedules.

Thus, the only way to combat any cost shifting is to align the medical incentives, and the only way to reasonably accomplish that is to have one medical system - not the panoply of systems that now create a dizzying array of complexity certain only to increase costs and diminish outcomes.

There have been attempts in the past on a state basis to implement some type of "24 hour" coverage or other universal plans and they have mostly been defeated or marginalized by all of the conflicting interests.

Yet, if medical care, including workers' compensation, is to escape the current dysfunction of competing financial incentives, the only avenue is to eliminate the competing incentives.

As long as there are silos of opportunity, the best silo will get the business, and the burden. And it's all the same - the cost shakes down to the consumer at some level anyhow.

Finance, Politics and Yoga

Photo is non-illustrative. Just me windsurfing big waves when I still could...

In an old presentation I stated, "Workers' compensation is a political construct that obfuscates medical science to achieve a financial result."

That's a pretty pessimistic viewpoint.

But a couple of stories today highlight the truth in that statement.

The State of Nevada is, for the first time in 15 years, is taking a look at the discount rate used to calculate the present value of lump sum settlements and awards.

As you know, the cost of funds, or ability to generate future returns, has been stagnant the past few years as the Federal Reserve Bank has kept the lid on monetary policy following The Great Recession.

I don't need to go into the financial wizardry that has made it so, but the bottom line is that interest rates have never been so low for so long.

That means that a dollar invested today doesn't produce much more than a dollar tomorrow.

Conversely, it also means that if an annuity (a steady stream of regular payments) is based on a higher interest rate than what is market normal, then the recipient of the annuity gets cheated out of future buying power.

A $100,000 award that would be paid out over 20 years has a present value of only $31,180.47 at the 6% rate, but is worth $55,367.58 at a 3% rate.

Las Vegas claimants' attorney Virginia Hunt, with whom I've had the privilege of working in the past, brought this to the attention of Division of Industrial Relations officials, who admit they have been negligent in following the law, which mandates that the division look at the discount rate every year.

The division hasn't reviewed the rate since 2000 and hasn't changed the rate since 1997.

The difference is significant. In September 1997, the federal funds rate was about 5.5%. On Friday, it was 0.14%.

DIR Chief Administrative Officer Chuck Verre told WorkCompCentral Friday, "We did not do what we should have done. It's as simple as that."

Bully for Mr. Verre and Mrs. Hunt for tackling an important financial component of the claims pay process.

In the meantime, the political football that is workers' compensation is being played in Illinois.

There's a budget fight going on in that state between Gov. Bruce Rauner, a Republican, and House Speaker Mike Madigan, D-Chicago; the budget deadline was June 30. Workers' compensation, which was just recently "reformed" in Illinois, is said to be the bargaining chip being used to break the stalemate.

Rauner has said he may support a spending plan that includes a tax increase if Democrats agree to a list of nonfiscal to-do items, including workers’ compensation reform.

But instead of dealing with House Bill 1287, a bill passed by the House of Representatives on June 4 that included a provision to prohibit insurers from charging "excessive rates," a provision that Rauner and his business allies found objectionable, the Senate approved its own version of workers' comp reform, SB 162, introduced by Sen. Kwame Raoul, D-Chicago.

SB 162 incorporated some of the ideas contained in Rauner’s memo, but there are numerous contentious issues in the bill on which the parties are basing fiscal compromise.

In the end, as with everything politics, “It depends who else gets a haircut,” said Raoul.

And the medical part is about yoga.

Yoga has come into vogue as a treatment modality for back pain patients in workers' compensation.

A survey by the Centers for Disease Control and Prevention released earlier this year says the number of yoga practitioners has doubled from 2002 to 2012, highlighting the popularity of this ancient Indian exercise.

One of the best remedies for generalized back pain is exercise - and yoga is exercise.

Even the Official Disability Guidelines recommends yoga for “highly motivated patients.”

The key of course is the injured worker must be "highly motivated," which in practical terms means discipline - participating in the exercise on a daily basis.

Claims payers seem to embrace yoga as "treatment."

"Treating chronic pain is a complex endeavor and in some cases involves utilizing alternative treatment options such as yoga," California State Fund Medical Director Dinesh Govindarao wrote in a statement to WorkCompCentral on Friday. "The biopsychosocial treatment model is an effective way to approach chronic pain patients. State Fund supports the use of alternative treatment options on a case-by-case basis with utilization review oversight."

A difficulty is that yoga providers and claims payers don't particularly gel on billing codes or how to reimburse for expenses tied to yoga instruction and practice.

And that's because there's no standardization of the practice, with literally dozens of different forms or disciplines.

But, regardless, yoga is cheap, it's non-invasive, and its practical effects for the "highly motivated" aren't in dispute - it's good medicine.

Tolerating Nonsense

The California Workers' Compensation Insurance Rating Bureau's latest annual report shows that the average medical benefit payment per claim in California remains almost double the national average.

Medical benefits accounted for about 40% of system costs – $6.6 billion in 2014 and $6.3 billion in 2013 – while indemnity benefits of $2.9 billion in 2014 and $2.6 billion in 2013 accounted for 17% of the total each year.

Average medical costs, meanwhile, have declined each year since 2011. Carriers paid an average of $43,750 in medical benefits per indemnity claim in 2014, compared to $47,817 in 2011.

Average medical severity in California dropped 2.6% in 2012, 3.7% in 2013 and 2.5% in 2014. In NCCI states, medical costs increased by 2.4% in 2012, 3.2% in 2013 and 4% in 2014 – about the same pace as overall medical inflation.

Regardless, California's average medical severity, based on 2011 policy year data, remains about 40% higher than the national median.

Okay - so medicine costs more, and always has, in California. We all know that.

No one tells us why.

Safety National's Mark Walls asked me the loaded question while on a panel before a national audience at the National Workers' Compensation and Disability Conference last year, "Dave, why is California workers' compensation so much more expensive than the rest of the nation?"

I quipped, "Mark, everything in California is more expensive than the rest of the nation; property, gasoline, service... You know why Mark? Because it's worth it."

That got a good laugh, but the truth is that we, in claims here in California, simply tolerate it as a fact, when there's no good reason, except that we tolerate it.

For instance, I was presented a vignette the other day of our incomparable tolerance for just nonsense.

"When I see one of the industry’s best and brightest doctors," an industry consultant wrote me, "sign the PR-2 on the initial visit with ‘Expected Duration’ as 14 days and then, 2 ½ year later, sign a PR-2 with ‘Expected Duration’ as 14 days – I know something is messed up."

He goes on to say, "This guy is one of us – ‘We’re the good guys!’ And this is what he does? We’re not treating injured workers – we’re maximizing billing!"

Perhaps. Maybe there's another reason, but honestly I can't think of one.

Someone remaining under physician supervision because the expected duration of their malady is 14 days, in perpetuity, defies common sense.

Just how many of these perpetual 2 week duration cases are there that comprise a medical severity figure that is twice the national average?

That physician isn't being held accountable for this exercise in absurdity.

We think we're holding the line on medical costs by incrementally squeezing all profit margin out of providers with fee schedules, guidelines and other chicanery.

But the bottom line is that if no one holds this doctor, "one of the industry's best and brightest," accountable for realistic case management, then we have only ourselves to blame.

If we want to make that $43,750 average medical cost per indemnity claim go down, then we need to tell those "best and brightest" doctors that putting 14 days of duration endlessly 129 consecutive times isn't acceptable.

It's not the doctors; it's us, because we tolerate such nonsense.

The Sandbox

In California we have lien claimants - vendors of goods or services not directly a party to a workers' compensation case but who nevertheless attain party status to participate in litigation upon the filing of a piece of paper making their claim, and paying a fee.

Other states have similar procedures but call them different things.

In Minnesota, such participation is called "intervention" and an "intervenor" files a "motion" for such privilege - but basically it all works the same. An intervenor has no independent rights and is dependent upon the case in chief.

Those derivative rights also mean that special procedures can be instituted without offending the basic principles of due process and right to be heard, which means that the vendor needs to be on top of things in order to enforce payment claims.

So when the statute says "appear" then the vendor needs to show up - otherwise dismissal of any derivative rights becomes imminent with no further recourse.

That's what the Minnesota Supreme Court ruled.

In Sumner v. Jim Lupient Infiniti, the Court said that under Minnesota law, a provider has no right to initiate a reimbursement claim – it can only intervene in a claim filed by the claimant.

Once the provider files a motion to intervene, Minnesota Statutes Section 176.361 says that the providers "shall attend all settlement or pretrial conferences, administrative conferences, and the hearing" unless a stipulation has been signed and filed, or the care provider's right to reimbursement has otherwise been established.

The statute also provides that the intervenor's "failure to appear shall result in the denial of the claim for reimbursement."

Generally, the statutory use of the word "shall" denotes that something is mandatory, the court observed, and a majority of the justices reasoned that the words "appeal" and "attend," as used in Section 176.361, were synonymous.

Thus, the court said if an intervenor does not show up for a hearing, its claim can be denied.

What the court is really saying (and what courts around the country that deal with ancillary rights in comp cases are really saying) is that workers' compensation is about the injured worker and the employer.

Everyone else intervenes to do something to that basic relationship. But there is no direct connection because without the injured worker, and without the employer, there is no workers' compensation.

And because of that, unless there is some statutory or contractual relationship that alters that connection, there are no rights.

Whether or not one agrees with that position is irrelevant because that's just the way it is. You either want to play in the sandbox, or you go to some other playground.

Empowerment

"I don't need someone to advocate for me. I need someone to empower me."

Becky Curtis was in a frightening roll over accident in Montana in 2005 when she fell asleep at the wheel. She was working and suffered a spinal cord injury resulting in partial paraplegia and intensive, prolonged (chronic) pain.

Ask her about workers' compensation, and she has nothing but positive things to say about the team that took care of her, and still is helping her.

Becky Curtis' car

Through vocational retraining Curtis became a pain management coach, and founded Take Courage Coaching to help chronic pain patients, those for whom pain management modalities have done the most any third party intervention could, enjoy life in spite of the pain.

Pain management, as Curtis explained to the audience at the Self Insurance Institute of America's annual Workers' Compensation Executive Forum yesterday in New Orleans, requires the patient ultimately be active in their own recovery, not a passive patient.

There is a psycho-physiological reality to chronic pain, that was explained by Michael Coupland, CPsych, RPsych, CRC. Coupland said that at the point where pain becomes chronic, which is when third party remedies no longer have an impact, cognitive behavioral therapy (CBT) is highly effective.

CBT is about remapping the brain to redirect the signals sent by the nervous system and involves a concept called neuroplasticity - the brain is flexible enough that it can be, essentially, trained to feel differently.

There was an overall theme to the forum that underscored a key difference between self-insured workers' compensation programs, and traditional insurance models: focus on the employee.

Though there were sessions on marijuana, the changes in health care insurance, and other technical sessions, the overall tone was, take care of the claim and the benefits will follow. Other than the debate about self-insurance groups versus captives, there was very little talk about cost and expense; most of the talk was about how to better serve the injured worker.

I expected this from a self-insurance oriented forum. The mindset is much different from the traditional insurance model, because the self-insured employer has a much tighter, more involved interest: that injured worker is THEIR employee and they're working with THEIR money.

The insurance covered employer typically doesn't react that way because the insurance company is an intermediary with its own financial objectives.

Self-insured employers get it: the best way to lower your workers' compensation expenses is to treat the injured worker quickly, efficiently, thoroughly and with the best treatment (including CBT) available.

Notice I did NOT says the MOST treatment - that is a vendor/provider desire.

The BEST treatment means sometimes having to pay more than fee schedule. It means sometimes authorizing a couple of extra physical therapy sessions even though the law says you've done enough. It means having claims adjuster case loads of not much more, if at all, than 100, so adjusters can actually make a difference rather than spend so much time entering data and completing paperwork.

It means providing the tools to the injured worker that will empower her to overcome chronic pain.

These remedies are available to traditionally insured employers, by the way - they just don't know it.

Enforce What Exists

The ink isn't yet dry, but a bill introduced into the California legislature would unwind a portion of three year old SB 863 to exempt certain medical treatment requests from utilization review, and thus, independent medical review.

Senate Bill 563, authored by Sen. Richard Pan, D-Sacramento, and sponsored by the California Medical Association, would establish that utilization review is prohibited for:

• Treatments proposed solely to maintain an injured worker’s current health care regimen due to a preexisting injury.
• Treatment requests already approved on the grounds of medical necessity.
• Unaltered treatment requests when there has been no change in the injured worker’s condition necessitating a corresponding change in care.

According to those interviewed by WorkCompCentral for the story, the bill arose out of a survey by CMA of its members who overwhelmingly expressed frustration with UR after SB 863.

Bill language needs clarification, something that hasn't gone unnoticed by CMA.

Molly Weedn, a CMA spokesperson, told WorkCompCentral the word “preexisting” doesn’t refer to nonindustrial injuries and that the association will work with the Senate Labor and Industrial Relations Committee, where the bill was introduced, to amend the language.

The California Chamber of Commerce has labeled SB 563 a “job killer,” their tired old phrase for a proposed law that they vehemently oppose, even though they have no data or evidence that it would actually "kill jobs." It's such a worn out, over-sensational, cliche that any time the Chamber attaches that label to proposed legislation my reaction is the opposite of what they intend.

But, opponents to SB 563 have a point - this legislation could likely result in returning some of the medical treatment decision process back to the courts.

This is yet again part of the relentless "reform" cycle that grips California (and other state) workers' compensation. The ebb and flow of interests modifying the law to achieve their special desires ultimately complicates the system even more, resulting in even less efficiency and more harm to injured workers and their employers.

The real issue is enforcement.

If medical treatment that was promised as part of a settlement agreement, or ordered by an Award, is now being subject to UR post SB 863, then the Division of Workers' Compensation and/or Department of Insurance needs to step in and exact some discipline.

And not namby-pamby administrative penalty discipline either, but full scale business practices findings as warranted, where the penalty is maximum (but in my mind still a paltry $500,000 - perhaps enough to get some attention but not enough to affect the profit margin, where it would truly be felt, and consequently effective).

There are no more effective judicial sanctions available. Bad faith is trumped by exclusive remedy. The only party left that can do anything about a bad situation is the government.

We don't need more laws. We need stronger, much stronger, enforcement of the laws that exist.

Assimilation Is Inevitable

The big focus at the California Workers' Compensation Institute's annual meeting yesterday in Oakland, CA was on medical treatment.

And not the cost of treatment, but what the lack of quality treatment is costing.

Dr. Gary Franklin, medical director for the Washington Department of Labor and Industries, challenged the audience of industry leaders to invest in quality medicine.

This also means providing treatment for psychosocial issues that would interfere with recovery or good outcomes.

Franklin said that he and his colleagues have developed a surprisingly accurate, but simple, six question survey that should be administered to an injured worker very early on in the treatment process to help identify whether there is an increased risk of prolonged disability.

The key then is to introduce appropriate treatment early in the game before disability progresses beyond the return point.

Bowzer Assimilated

People that are disabled for 3 months or more have a 50% chance of still being disabled at the one year mark post injury, and often long after that - thus early identification and intervention with all of the medical resources available should be implemented (within recommended guidelines, of course).

This includes providing psychological treatment, or better therapies to deal with chronic pain (which, Franklin noted, is defined as pain experience for 3 months or more - see the correlation to long term disability?).

And it's up to the administrators to take charge and provide this treatment - Franklin said most clinicians are not good at identifying patients who are at risk for long term disability.

Dr. David Deitz, former medical director for Liberty Mutual Insurance, echoed Franklin's presentation but put it into context with a comparison to general health, stating that without ensuring injured workers receive good quality care, there isn’t much more that can be done to reduce medical costs.

Both Franklin and Deitz advocate compensation for outcomes, rather than the present fee for service model currently employed in most work comp systems.

Deitz also demonstrated a general health provider that essentially advertises its outcomes via a web page. And the CWCI is releasing more tools to members and other researchers to use its vast repository of data to make more informed decisions about the who, what, when, where and how of treatment versus outcomes.

There are a couple of hurdles in this trend, some of them pretty big.

The biggest hurdle I see is the culture of workers' compensation. 100 years of doing things the same way over and over again is difficult to change. Everyone is in on it - providers, payers, patients, employers, the government - all of the players need to change their mindsets in order for such profound changes in the provision of medical care (not just to injured workers, but the overall health care delivery system) to actually work.

Transparency in outcomes is a tall order - we're talking about putting perhaps fragile egos onto the public stage; and there's the argument of privacy, and perhaps inappropriate discrimination.

Another large hurdle is education of the employee population, particularly before an injury occurs.

I'm not talking about telling an injured worker that there is no scientifically supported evidence that spinal fusion surgery is any more effective or efficient in dealing with back pain than physical therapy and exercise. There needs to be constant communication and education on the health treatment process - help identify issues early on, and then when an injury does occur (or is claimed) a constant flow of information about what will happen, when and by whom towards a certain expectation, must occur.

“Not only should we be focusing on quality from the perspective of whatever cost benefits we get, but without systematic health care improvement, we are not going to bend the cost curve at all,” Deitz said. “We are going to continue to spend money in increasingly inefficient ways and if we don’t focus on quality and outcomes, we’re lost.”

In the meantime, CWCI president Alex Swedlow in his opening presentation on the state of research at the Institute hinted at an upcoming report release expected mid-April that may challenge whether Medical Provider Networks are even working. A chart displayed to the audience suggests that the treatment model which existed in the early 1990s, the Preferred Provider Organization model, was not only less expensive than MPNs are now, but also returned better outcomes.

Peter Rousmaniere in his most recent white paper and four part web cast on Seismic Shifts argues that profound change is coming, and that industry people should be prepared to provide integrated benefits, not just workers' compensation. The good news is that the workers' compensation industry is already trained to provide medical care, return to work (or more broadly, return to lifestyle) services, and disability indemnity - expanding that expertise into a broader realm isn't that far of a stretch.

Some big health care companies are already trending towards that model.

The promise of workers' compensation when originally devised was prompt, efficient medical care in the event of a work injury. Today's promise should be prompt, efficient medical regardless of how an injury or illness occurs.

Workers' compensation medical treatment is a dribble in the overall healthcare equation (something like only two percent of the overall health care spend in this country). I still believe that assimilation is inevitable and I came away from CWCI even more convinced of this argument.

Whose Body Is It Anyway?

The cardinal rule in workers' compensation has always been, control of the medical is control of the case.

Those in work comp litigation understand this concept very well, on both sides of the fence.

A recent Illinois case is demonstrative.

In Bob Red Remodeling Inc. v. Illinois Workers' Compensation Commission (Lemanski), No. 1-13-0974WC, 12/31/2014, Zenon Lemanski, a mono-lingual Polish immigrant, suffered a traumatic brain injury in July 2007 when he fell 11 feet from a rooftop while working for Bob Red Remodeling.

He was hospitalized for several days after his fall, and he underwent a craniotomy, performed by Dr. Leonard Kranzler.

Lemanski followed up with Kranzler after being discharged from the hospital. He then began seeing Dr. Prasad Gourineni, an orthopedic specialist.

On the advice of his attorney, Lemanski later switched to Dr. Victor Forys as his treating physician.

Bob Red also had Lemanski see Dr. Felise Zollman for an evaluation.

Zollman recommended vestibular rehabilitation for Lemanski's vertigo, further neuropsychological testing, speech therapy, psychological testing and perhaps counseling for depression.

Bob Red authorized the course of treatment recommended by Zollman, but it refused to authorize treatment from Dr. Anna Wegierek, a psychologist to whom Forys had referred Lemanski.

Let's hit the pause button here for a moment: 

The employer controlled physician recommended evaluation for potential depression. Lemanski goes to see a psychologist (which to me seems reasonable under the case facts), just not the specific psychologist that the employer wants.

Play button:

Bob Red filed a motion to terminate the payment of benefits to Lemanski based on his failure to obtain care in accordance with Zollman’s recommendations.

An arbitrator denied the motion, because Bob Red could not show that Zollman’s recommendations offered a reasonable prospect of restoring Lemanski to a level at which he could perform work, and instead found Lemanski to be permanently and totally disabled.

The Illinois Workers' Compensation Commission upheld the arbitrator's ruling, and Bob Red sought judicial review.

A judge from the circuit court of Cook County dismissed the appeal based on Bob Red's failure to file an effective appeal bond, but the judge proceeded to address the merits of the dispute anyway. The judge opined that it was not an abuse of discretion for the Commission to deny Bob Red's motion to terminate.

Bob Red appealed, after correcting the deficiency with its appeals bond.

The appellate court said that Lemanski's decision to follow the advice of his treating physician rather than the advice of Zollman was not unreasonable.

"Admittedly, Zollman’s credentials with respect to brain injuries are more substantial than those of Forys," the court said, but "Forys is board certified in internal medicine, and his credentials are not insignificant."

But the relevant inquiry "is not which course of treatment was superior, it is whether claimant’s behavior was reasonable under the circumstances," the court said, and it found Lemanski wasn't unreasonable in listening to Forys.

This isn't an issue of compliance with a set of medical treatment guidelines, it's a dispute over who is going to invade the psychological space of the patient: a doctor that is chosen by the patient (well, in this case, the patient's attorney), or a doctor that may be better controlled by the "payer" employer.

In other words, who's body is it?

The likelihood is that Lemanski doesn't really know which doctor, if any of them, is best for his physical and mental health. But he chose to put trust in his attorney, for better or for worse.

As in the majority of workers' compensation treatment cases, Lemanski himself wasn't in control of his medical destiny.

At least relative to litigation outcomes, the attorney-directed medical was probably a better choice as this got Lemanski a finding of permanent total disability, and frankly based on the facts recited by the appellate opinion, that's probably a fair award.

Perhaps Lemanski did receive the very best care for traumatic brain injury ... or maybe he did. We don't know.

The kicker: Bob Red was liable for the cost of Forys' treatment.

Mandated Burden

I have a great idea - let's make the burden on physicians in the California workers' compensation system even greater by requiring additional documentation on requested medical treatment, even before it is rejected by either utilization review or independent medical review.

This would force physicians to just stick to the Medical Treatment Utilization Schedule and there would be nearly instantaneous control over medical treatment requests!

Just think - fewer out of schedule recommendations, fewer experimental prescriptions, lower treatment costs, lower billing, review and containment expenses...

... and even fewer physicians willing to put up with such nonsense.

Yet, the California Division of Workers' Compensation in its latest revision to the MTUS regulations is proposing just such a regulatory change.

The proposed update to the MTUS, its first revision since 2009 would require doctors seeking to deviate from the schedule’s recommendations to provide research to back up their requests.

When doctors request treatment for a worker that deviates from the schedule’s recommendations, the new provision would require that physician to attach with the request “a copy of the entire study or the relevant sections of the guideline containing the recommendation he or she believes guides the reasonableness and necessity of the requested treatment that is applicable to the injured worker’s medical condition or injury.”

Doctors that wish to go outside the MTUS basically are already required to support such treatment requests with evidence to avoid denial up the UR and IMR food chain. What does making this requirement a part of the law have to do with efficient, efficacious or adequate medical treatment?

Further, because the DWC updates the schedule only once every five years, but medical research is ongoing, there will be an increasing body of evidence outside of the state’s recommendations thus increasing the burden on physicians just to comply with the regulation.

Physicians aren't paid to support their treatment requests under the present fee schedule - I can't imagine any would go the extra mile with the regulatory mandate as proposed. It would be much easier, and financially safer, to ignore the medical interests of the injured worker regardless of whether there would some better treatment options.

Or just get out of industrial medicine altogether.

And, even if a doctor went that extra mile and supplied the studies or evidence, that does not mean it will pass muster at the UR or IMR level. If DWC wants doctors to support their requests, and doctors do so, then there should be a concomitant obligation on UR/IMR to approve the proposed treatment.

The category of cost containment services is receiving the dubious distinction of being the fastest growing expense category as measured by the Workers' Compensation Insurance Rating Bureau. Adding more documentation to the mix adds more time to the UR/IMR reviewer's job, and more money needed to pay utilization-review doctors.

This is a bad idea, plain and simple. California is already the most regulated, most burdensome workers' compensation system in the United States, and probably all of the world. Heck, there are still parts of SB 863 that have yet to be implemented more than 2 years since that legislation upended the system.

This part of the proposed update is unnecessary over-regulation.

The division is accepting comments on the proposal until 5 p.m. Tuesday. Written comments can be emailed to dwcrules@dir.ca.gov or faxed to Maureen Gray at 510-286-0687. Commenters can also mail their input to Maureen Gray at the Department of Industrial Relations, P.O. Box 420603, San Francisco, CA 94612.

Dubon and Adjustment Disorder

The big news out of California this morning is that the Workers' Compensation Appeals Board sitting en banc reversed its earlier ruling in the Dubon vs. World Restoration case.

In its earlier ruling the WCAB was widely criticized by the defense community as destroying the intent of SB 863's independent medical review process by allowing procedural error to trigger ejection from the process, sending the case back into litigious territory.

The new Dubon ruling revises that decision by stating that only if utilization review is untimely is there the option to interfere with the IMR process, allowing a workers' compensation judge to make a determination on medical necessity.

The composition of the Board had changed since the first Dubon ruling with Commissioner Alfonso Moressi retiring, replaced by Commissioner Kathy Zalewski, former Department of Industrial Relations Chief Counsel who was appointed to the WCAB in May.

Commissioner Marguerite Sweeney dissented, arguing that there are substantive requirements for UR decisions, not just timelines for their issuance, and controversies as to whether a UR decision is valid should be resolved by the WCAB.

Commissioner Deidra Lowe argued the matter was moot because Dubon got his surgery.

Applicant attorneys are, understandably, upset because this is a major blow to medical control of a case.

Tina adjusted when she lost her last tooth...

The defense community is ecstatic because they believe the intent of SB 863 is being upheld and that a major case law created loop hole was being closed.

Regardless of any argument in favor of or against the new Dubon ruling, the board's first step in the logic of its opinion can't be refuted: if UR is untimely, then procedurally, as dictated by black letter law, there is nothing for IMR to review, and thus the matter must be decided by the litigation process.

The appealing carrier, State Compensation Insurance Fund, wanted the board to rule that "any dispute" over a UR decision must go to IMR, and that was rejected.

Legal issues are not for IMR, the board states - that process is to determine medical necessity. Timeliness is a legal issue, not a medical issue, so it does not belong in IMR.

The board also ruled that timeliness is basically the only legal issue that could be raised within the statutory scheme of the treatment review process, stating that missing records, expertise of the reviewing physician and compliance with the Medical Treatment Utilization Schedule are medical issues:

"The legislature has made it abundantly clear that medical decisions are to be made by medical
professionals. To allow a WCJ to invalidate a UR decision based on any factor other than timeliness
substitute his or her own decision on a treatment request violates the intent of SB 863."

As Commissioner Sweeney pointed out, those too could potentially involve substantive issues that affect legal rights, but that is not an opinion held by the ruling majority.

So, for the time being at least, medical control over cases that are procedurally efficient (in other words, where timeliness of request or review is not in question) rests with the employer/defense community.

There are going to be individual tragedy cases, and there are going to be cases where treatment isn't medically necessary or supported by the evidence.

But as the California Workers' Compensation Institute had recently pointed out, the bulk of IMR cases involve prescription drugs, and more often than not the prescription of pain killers outside the treatment regimen approved by the Federal Drug Administration.

Prescription drug payments increased 28% from 2011 to 2012 alone, and now account for about $1 out of every $8 spent on medical care, according to CWCI.

CWCI released a paper yesterday arguing that California would benefit enormously from a closed formulary similar to what Texas had put in place, saving hundreds of millions of dollars and perhaps saving many lives from over-prescribed, medically unsubstantiated prescription drugs.

The timing of the release of that report is serendipitous.

What the new Dubon case is really saying is that SB 863 is a game changer, that the rules have changed and that the system is serious about enforcement of those new rules.

The new rules are uncomfortable. They are constrictive and are counter to a hundred years of cultural evolution.

In psychology there is a diagnosis, overused in the psyche-mill hey days of the 1980s, "adjustment disorder." That diagnosis recognized that when change occurs a person's routine is interrupted, which causes some anxiety, but after a time the person adjusts to the new reality and symptoms disappear.

California work comp is going through an adjustment disorder, albeit the period of adjustment is longer than the protocol set forth in the Diagnostic and Statistical Manual IV for psychiatric disorders.

There will continue to be reactionary challenges as the adjustment evolves. Eventually the anxiety will wane, there will be a new level of operational comfort.

The question is whether this new level of operation fulfills the social role for workers' compensation and that is an historical question - i.e. one that can only be answered retrospectively.

IMR: Trust the Instruments

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.