Published on 05/07/2015 by WorkCompCentral, authored by Alan Gurvey
Recently I was interviewing a candidate for a vacant attorney position at our firm. I asked the attorney, who had spent most of his career as a defense attorney, what he thought the three most difficult challenges would be as an applicant attorney in today’s post-SB 863 environment. He first said, “Dealing with the applicants.” I responded by saying that isn’t so difficult if you have compassion and understanding and explain the law to them. Most of the applicants are not happy about it, but they understand if you are sympathetic to their plight. Then he said, “Dealing with apportionment.” I responded, “Well, if the doctors understand the basis for the apportionment as defined by recent cases, then at a deposition, typically a fairly accurate accounting of apportionment, if any, can be determined.” Finally, he said, “UR and IMR.” My response was, “Well, you’re getting closer, but laws of UR and IMR are fairly straightforward, notwithstanding perhaps being unconstitutional and unfair. They don’t cause as much of a challenge to us since there isn’t a whole lot we can do in most instances when treatment is denied, other than feel sorry for the injured worker.”
I then said to him, which I believe caused him a fair amount of surprise that the biggest challenge facing the injured worker today is dealing with doctors in the medical provider network. This is where it all starts. When a new client comes into an applicant attorney’s office, if the case is accepted, or if it is within the 90-day decision period, the applicant attorney should be requesting treatment from a doctor in the defendant’s MPN. This, however, is a most challenging and arduous process that can drive even the most calm and stable person to pull his or her hair out. I have, in fact, noticed that the employees at our firm have less hair than they had before this MPN nonsense started.
So, here is a brief analysis with specific examples of why the injured worker in the state of California is behind the eight ball with an unfair advantage from the get-go.
First, locating the defendant’s MPN can be next to impossible. It is supposed to be readily available to the public by virtue of a well-publicized website, which is provided to anyone who requests it. However, what becomes complicated in many instances is that different employers and branches of insurance companies and third-party administrators use different MPNs. Many times one must know every specific piece of information about the insurance company: TPA, division or state entity that provides the specific relevant MPN.
Second, the websites are often set up in such a way that it is exceedingly difficult to peruse the doctors. It is almost as if the “owner” of the MPN specifically makes it difficult to manage so that it takes sometimes hours to navigate.
Third, and probably one of the biggest reasons that the MPNs are such a failure is that the doctors listed on the MPN are most often not available to handle a workers’ compensation claim or have been unceremoniously kicked off the MPN, despite their name remaining on the website. At some point, there was some noise that the Department of Industrial Relations would require all MPN physicians to sign an agreement that each doctor would agree to treat workers’ compensation applicants in order to maintain their status on the MPN. This has certainly fallen by the wayside.
In a recent survey of one MPN website, an assistant in our office called 55 doctors on one MPN. Out of the 55, only two were willing to consider treating the injured worker. Most of the doctors were not familiar with workers’ compensation, nor did they even know that they were on the MPN. Other doctors had moved. Others were no longer on the MPN, but their names remained on the website. There were at least six doctors who had died. Moreover, some of the doctors, who were part of a group health set-up, such as Kaiser, indicated that all of the decisions regarding treatment had to go through a different scheduling department, which had no connection with workers’ compensation. Then, there were those doctors who said they needed to review all of the medical records and reports and would “get back to us.”
While this charade goes on for each and every applicant, many hours of law firm time are lost. But what is even worse is that the injured worker does not have access to medical treatment, especially on an expedited basis, which often could prevent a medical condition from worsening and allow the injured worker to get back to work sooner. Fewer injured workers are being treated appropriately within the MPNs, so more hours are lost of productive employee work time.
There have been many instances when the doctors have requested to review the records before “they” decide whether they will accept the patient, notwithstanding their ostensible agreement to treat injured workers as part of their involvement with the MPN. Recently, on another case, we sent the records, which were voluminous, to four different doctors, all of whom refused to see the injured worker. It is indeed a fallacy to suggest that doctors on the MPN are there to provide treatment for injured workers.
Probably the most difficult problem that an applicant attorney faces in attempting to obtain treatment for an injured worker is obtaining authorization for a doctor to treat the injured worker within the MPN. It sometimes will take three or four weeks just to receive a return phone call or email from an adjuster where authorization has been requested by the doctor, our office, or both. Many adjusters seem to think that it is acceptable to ignore the request for authorization, while the injured worker suffers, and, of course, the doctors who are scared shirtless to be kicked off the MPN, absolutely refuse to treat without the authorization. Moreover, many of these doctors are afraid to say what may be required from a medical perspective because they feel they have a gun at their head. In fact, some MPN doctors have commented that they may be subject to malpractice or Medical Board discipline for failing to follow the Hippocratic Oath in treating injured workers due to the duress of the insurance adjuster, who does not possess a medical degree.
There is no quick fix to this within the MPN system. Many times, after three to four weeks of attempting to obtain authorization, the applicants' attorney is forced to file for an expedited hearing to get into court to ask a judge to order the authorization. What typically happens is that once the parties are summoned to court for this purpose, based on the Declaration of Readiness to Proceed filed by the applicant attorney, the defendant says, “Oh, authorization was provided.” Yes, authorization may have been provided two days before the hearing. It is a colossal waste of time and waste of money to burden the courts with forcing an adjuster to authorize a simple examination with an MPN doctor. Yet, there are no easily obtainable sanctions or penalties that would prevent the defendant from stonewalling or ignoring the applicant’s request for authorization with an MPN doctor.
Finally, a huge problem with MPNs and the entire workers’ compensation system in the state of California is that probably 80% to 90% of the doctors who are on any one given MPN have no clue as to how to write a workers’ compensation report, which qualifies as substantial medical evidence. Nor do these doctors know how to write a Request For Authorization for treatment, which is now the standard for utilization review and independent medical review. Utilization review most often relies upon standardized medical guidelines such as the Medical Treatment Utilization Schedule, for which many MPN doctors have absolutely no clue as to how to provide the treatment request with the support of the MTUS. Moreover, it is probably in the best interest of the insurance carrier to ensure that most, if not all, of the physicians on an MPN have no understanding whatsoever of the workers’ compensation system, so ultimately, they will save money in treatment costs. If, in fact, these insurance carriers or self-insured employees were honest, and actually cared about the provision of reasonable benefits, they would ensure that doctors on the MPN had taken courses in understanding the nomenclature of workers’ compensation and understood how to provide RFAs, which would be the basis for obtaining treatment.
Furthermore, the law currently pits the treating doctor against the panel qualified medical evaluator, with each doctor's report receiving equal weight before the court, under the Bonzo v. California Institute of Technology/Jet Propulsion Laboratory and Felix v. Verizon Wireless Amphitheatre cases. However, since most of the MPN doctors don’t know how to write a substantial medical evidence report based on the current workers’ compensation law, many times the applicant has virtually no chance of prevailing against an unfair and unreasonable PQME report. More often than not, the MPN treating doctor will not provide a thorough and well-positioned rebuttal report to the PQME report. This is primarily because he or she does not know how to do so, and the fact that the compensation to rebut the report is negligible versus what the PQME receives for his or her report provides little motivation for the doctor to spend time doing so.
Even more egregious is the fact that the MPN treating doctor does not have a clear legal basis to be compensated for review of records and reports, where the PQME does. This, in most instances, results in the applicant facing an unfair disadvantage as his or her treating doctor cannot substantiate, and, in many cases, chooses not to substantiate the Maximum Medical Improvement opinions and conclusions in the MMI report, notwithstanding one would think that the treating doctor should be in a better position to substantiate the conclusion since he or she has seen the applicant more often and has theoretically established a more informed relationship with the applicant.
So, who ends up suffering? Unquestionably, the injured worker suffers. The conditions that are not treated appropriately and expeditiously ultimately result in chronic pain and other secondary symptomatology that sometimes is worse than the initial injury. All of these conditions have compensable consequences that can cause more time lost from work than the original injury. Moreover, it is well known that the adjusters on these cases often will not send all of the relevant records to the utilization reviewers for one reason or another. Many of these MPN doctors have no interest in doing so either, since many of them work for group health organizations that have more pressing financial interests than workers’ compensation. And, furthermore, the final reporting of the MPN doctor is often deficient, resulting in an inability for applicants to receive benefits to which they are legally entitled.
In the end, it is an unworkable situation that has a domino effect on all of the other aspects of the workers’ compensation system. When the applicant attorney is spending hours and hours, weeks and weeks, and sometimes months and months attempting to find a doctor on an MPN who will treat the injured worker and provide reasonable and legally supportable reporting, precious time is lost for other injured workers who may require the time and focus. If the system was set up in such a way that authorization was provided to doctors who were committed to treating workers’ compensation patients, and committed to understanding the red tape involved in obtaining reasonable treatment, the whole system would run much more smoothly. However, it seems that the MPN system is set up as an intentional way to cause confusion, unresponsiveness, inappropriate treatment, unreasonable delays, and cost containment, without concern for the injured worker. This trickles down and ultimately costs all of the taxpayers significant money, as the insurance companies and employers are not paying for the real costs of injured workers in the system.
It will only be through advocacy and a clear understanding of this labyrinth that change will be promulgated, and the system will be usable again.
Alan Gurvey is managing partner of the Law Firm of Rowen, Gurvey & Win in Sherman Oaks, California.