"...he believed Overpeck was saying the order needed to contain language about the IMR being invalid because of a "plainly erroneous express or implied finding of fact," and that there was "clear and convincing evidence" of this mistake. If the WCJ "had written these magic words...I'm sure there wouldn't have been a problem." Alan Gurvey
Published on 01/27/2016 by WorkCompCentral, authored by Sherri Okamoto
Getting a second go-round through the independent medical review process is not as simple as asking for it, even if there is no dispute that the initial IMR decision was invalid, according to a letter by the California Division of Workers' Compensation issued last week. Labor Code 4610.6 provides that the remedy for an invalid IMR is another round of review, and subsection (i) expressly directs the DWC to re-submit a treatment dispute to IMR if the original decision is reversed. However, DWC Administrative Director Destie Overpeck told the attorneys in Darlene Health's comp case that they couldn't just stipulate the need for a do-over by the state's IMR provider, Maximus Federal Services.
The attorneys in Heath's case were in agreement that the IMR reviewer had looked at the wrong segment of Heath's spine in assessing the reasonableness and necessity of the treatment her doctor had recommended. Section 4610.6(h) allows for an IMR decision to be set aside if it is predicated on a plain mistake of fact.
But Overpeck sent the attorneys a letter last Thursday saying they needed to get the workers' compensation judge to make an actual finding that reversal was warranted.
DWC spokesman Peter Melton on Tuesday said the agency is sending WCJs letters responding to orders remanding an IMR for re-review when the order does not indicate that one of the statutory bases provided by Section 4610.6(h) for reversal of the IMR decision have been met.
"In order for the AD to perform her administrative responsibilities, an order must include some minimal level of information so that Maximus does not repeat the same error that occurred in its first review," Melton said. For example, he said, an order often will remand for re-review due to a finding of plainly erroneous fact, but neglect to mention which facts were plainly erroneous. Other times, the order will mention the error of fact without linking those facts with the legal basis allowing for re-review.
That's what happened in Health's case, he said, and "the DWC was unable to understand how that (error of) fact warranted re-review."
He said the decision to send out letters is made on a case-by-case basis, with the recognition that "simply forwarding the case for re-review may result in the occurrence of the same error, which works against the goal of expediency of necessary treatment for injured workers."
The parties in Heath's case had secured a minute order from WCJ Andrew Shorenstein in December stating the IMR decision was "reversed...based on factual fusion being on L4-L5," and that the parties were "to resubmit issue to AD-IMR."
Heath claimed she had injured her back in November 2013 while working for Walgreen's. She underwent surgery for a lumbar fusion at L4-L5. She continued to complain of pain after the surgery, and her doctor recommended she begin receiving radio frequency ablation at L5-S1 and L3-L4 – at the spinal levels above and below the fusion. The doctor also recommended pool therapy, due to Health's obesity and weight-bearing pain.
Walgreen's submitted the doctor's request for authorization to utilization review. A UR doctor opined that neither was reasonable or necessary.
Heath requested IMR, and the IMR doctor opined that the radio frequency ablation therapy should be denied, in part, because "the L-S1 level is fused."
Her attorney, San Diego practitioner John Don, filed a request for hearing challenging the validity of the IMR determination. He said Tuesday that the judge had seen the mistake regarding the actual level of the fusion in Heath's spine "right off the bat," and he thought securing a stipulation from Walgreen's as to the existence of this mistake would allow Heath to avoid having to go through an actual trial.
On Dec. 29, Don submitted a request for a new IMR – along with the minute order, the UR decision, the IMR decision, a report from Heath's treating doctor and a report from the qualified medical evaluator.
He said he was "shocked" to get the letter from Overpeck last week saying she would not re-submit Heath's treatment request to Maximus.
Don said he did not think Overpeck had the authority to "overturn the court sanctioned stipulation" and "unilaterally refuse to submit the issue to a new IMR examiner." If Overpeck did not think the IMR decision was invalid, Don suggested the appropriate recourse would have been for the DWC to file a petition for reconsideration to the Workers' Compensation Appeals Board.
Instead, he complained, the DWC is "running roughshod over a judicial determination." Don said he didn't understand how the DWC could force him to take this issue to trial and secure formal findings and an award from the WCJ.
Don said he plans to ask the WCAB for an order directing the DWC to submit the treatment dispute to IMR. He said he will also be asking the WCJ to make the requested findings and he will resubmit them to the DWC, but he predicted that going this route "will add an additional six months to the worker's plight to get appropriate care" because he will have to wait for the matter to be set for trial and for a decision to be issued.
Either way, Don reflected, the constitutional guarantee that the comp system provide injured workers with "unencumbered benefits" will be "thrown to the wind."
Michael Huynh of Adelson, Testan, Brundo, Novell & Jimenez is representing Walgreen's on Heath's claim. On Tuesday he acknowledged that Overpeck's letter will cause "some delay," but he said he was "really not all that upset about it."
Huynh said he and Don had both thought the minute order was sufficient to get a new IMR done. He understood Overpeck as saying Maximus will not be required to consider the medical treatment dispute again until there are findings and an award.
He said he expected to "have to go back to court and have a finding entered," but he thought "it can probably be dealt with on a walk-through basis," so it shouldn't take very long.
While it means the case is going to take longer to resolve, Huynh reflected "that's just the process that we have to go through." The lesson for attorneys, he said, is that "a formal FNA may help speed up the process," but the process is what the process is.
Upon being apprised of the content of Overpeck's letter, defense attorney Richard "Jake" Jacobsmeyer of Shaw, Jacobsmeyer, Crain & Claffey said he didn't think it was surprising.
He said he believed the administrative director would not have authority to order a second IMR unless there is an order from a judge saying the original IMR is defective. Jacobsmeyer said it seemed to him that all Overpeck wanted in this case was a "more definitive statement as to which basis is being relied upon, and some comment on what the facts were."
So "there are hoops to jump through," but "it's not as though the hoops are really really tiny and you can't get through," Jacobsmeyer said.
Applicants' attorney Alan Gurvey of Rowen, Gurvey & Win agreed that "there needs to be a proper written rationale for any given WCJ decision or order." He said he believed Overpeck was saying the order needed to contain language about the IMR being invalid because of a "plainly erroneous express or implied finding of fact," and that there was "clear and convincing evidence" of this mistake.
If the WCJ "had written these magic words," Gurvey said, "I'm sure there wouldn't have been a problem."
Since the WCJ didn't say this, Gurvey observed the administrative director plainly did not feel it was within her jurisdiction to re-order IMR review. While that may be the case, Gurvey said he still questioned whether it was really necessary to demand that the WCJ issue formal findings when "there was a stipulation between the parties and it was well founded."
He said he didn't think it was fair that "just because IMR made an egregious mistake," the injured worker is being "left out in the cold" even longer.
Gurvey complained that "our system has become so didactic and overly burdened with rules, that these rather trivial procedural issues become more commonplace than not." He argued that the legislature's goal of "cost containment" in enacting IMR "is lost when there are so many nit-picky rules that need to be followed," and he said he feared "we have now lost sight of the overall purpose of workers' compensation."