"There should be a listing of the records, and a review so we know that they were actually reviewed...Just because an insurance organization is fined for not providing all of the records does not guarantee that the injured worker is going to get a fair shake." Alan Gurvey
Published on 02/29/2016 by WorkCompCentral
More than a year after warning claims administrators that it would start assessing penalties for untimely submission of records for independent medical review, the Division of Workers' Compensation has started a process that could lead to fines against 10 firms. The division has issued orders to show cause to 10 claims administrators that have consistently failed to provide medical records to Maximus Federal Services within the 15 days allowed by law, DWC staff counsel Alan Hersh said during the Educational Conference in Los Angeles on Thursday.
DWC spokeswoman Erika Monterroza said Friday the division will not be able to respond to a request by WorkCompCentral for a copy of those orders until early this week.
Bert Arnold, president of the California Applicants' Attorneys Association, on Friday said it's about time that the division starts penalizing claims handlers for not providing medical records.
"They should be assessed the full amount at this point," he said.
The DWC said in a Newsline released in November 2014 that it would initiate the procedure to assess administrative penalties for failure to submit relevant records in cases currently pending IMR. The statement noted claims administrators can be penalized $500 for each day records are untimely, up to a maximum of $5,000.
Arnold, a partner at Boxer & Gerson in Oakland, said while regulations allow the injured worker, his or her attorney and his or her provider to submit records for IMR, Senate Bill 863 puts the onus on the employer to submit these documents.
He added that medical records not being sent to Maximus continue to be a real problem.
Arnold said he doesn't think the playing field is level when it comes to IMR.
Injured workers can have requests for review rejected because of errors such as a missing signature or failure to include the full utilization review decision along with an application. Those errors do not toll the 30-day window for requesting IMR.
And as the DWC says on its website, there is nothing that an injured worker can do to correct an IMR application that has been untimely filed.
Under SB 863, IMR is the only avenue to challenge a utilization review decision to delay or deny a treatment request. If IMR is not requested within 30 days, the UR decision is valid for one year.
Claims handlers, on the other hand, face a maximum $5,000 penalty for actions that interfere with the IMR process, including not sending records on time. And to date, no penalties have been assessed.
"The sad thing is we bandy about these figures and at the end of the day, I've got clients sitting at home, not getting treatment, wanting to get treatment and wanting to get back to work," Arnold said.
Alan Gurvey, managing partner of applicants' firm Rowen, Gurvey & Win in Van Nuys, said it's important that the reviewing physician has all medical records before making a decision. But he also said there's no way for injured workers to know what records were sent.
IMR decisions issued in 2013 included a list of medical records that were reviewed. But since 2014, determination letters from Maximus say the decision was based "on a review of the case file, including all medical records."
"There should be a listing of the records, and a review so we know that they were actually reviewed," Gurvey said. "Just because an insurance organization is fined for not providing all of the records does not guarantee that the injured worker is going to get a fair shake."
Gurvey said if the administration was serious about ensuring fair and equitable review of treatment requests, it would investigate things such as who is making IMR and UR decisions and how much time is spent on each review.
"Are they semi-retired doctors or doctors who are just looking to make a quick buck and couldn't care less about the health and well-being of the injured worker? And, perhaps, are they simply not competent to be providing decisions about people's lives without specific knowledge, understanding and evaluation?" he said. "This is what really needs to be addressed."
Gurvey also said doctors who have done UR told him they were provided a top sheet to sign off on a decision that was actually made by an assistant.
He said those are the real issues that need to be addressed, and assessing penalties for not submitting medical records to Maximus will not do anything to fix what he says are the underlying problems in "this messed-up system."
"As I've said before, there needs to be a major overhaul in order for the system to work," he said. "Otherwise, we will all be dealing with this minutiae and whether an insurance company gets penalized for not providing all of the records in a particular case is not going to change anything in the grand scheme of equality, individual rights and fairness for an injured worker."
The California Workers' Compensation Institute on Feb. 18 reported the median number of days for Maximus to issue a decision after receiving an application ranges from a high of 67 in February 2015 to a low of 40 in June. By September, that number creeped back up to 45 days, and it continued to climb to 49 days as of December.
Maximus is supposed to issue decisions within 45 days for non-expedited cases, and within 72 hours for expedited reviews.
DWC staff counsel Hersh said during the division's Educational Conference that Maximus is doing its job, and the problem is being driven by claims administrators not supplying records on time.
Maximus received 165,619 eligible IMR applications last year and issued 163,826 decisions.
According to CWCI, Maximus upheld the UR decision to delay or deny treatment in 88.6% of decisions issued last year.