"The denial of treatment through UR and IMR has been 'rampant' ever since the systems came into existence, Alan Gurvey said, so the MPN process may provide 'another pick at the hand' and "more opportunity to have communication between the doctor and the injured worker, which may yield a more favorable result for workers in a system that many have seen as becoming increasingly unfair."
Published 11/11/2016 by WorkComp Central, authored by Sherri Okamoto
The 4th District Court of Appeal is being asked to decide whether an employer is able to refer treatment recommendation from a doctor within its own medical provider network through utilization review and independent medical review.
In Parrent v. WCAB (Pacific Bell Telephone Co.), No. D071162, applicants' attorney Robert A. McLaughlin is arguing that the Labor Code provides for "two separate and distinct medical delivery systems" — one for employers with an MPN, and one for those who don't have a network.
MPNs are the primary system for providing workers' compensation medical care in California, covering about 80% of the state's employees, according to McLaughlin's petition for review.
Speaking with WorkCompCentral on Thursday, he explained that MPNs were supposed to "streamline" the treatment process and yield savings by giving employers medical control, and reducing the need for litigation.
This is accomplished, in part, by requiring that MPNs have "their own internal dispute resolution process" if a worker is unhappy with the treatment provided.
Labor Code Section 4616.3 provides that a worker who disputes the diagnosis or treatment of his MPN doctor may seek the opinion of another doctor within the MPN, and if the patient remains unsatisfied, he can seek out the opinion of a third doctor.
Should the treatment or diagnostic service remain disputed after the third doctor renders an opinion, Section 4616.4 says the worker can request "MPN independent medical review."
The statute further provides that the administrative director of the Division of Workers' Compensation "shall immediately adopt the determination of the MPN independent medical reviewer."
But the treatment dispute in the Parrent case did not follow this route when his self-insured employer contested his doctor's request for authorization for two prescription topical medications, even though Parrent was seeing a doctor within his employer's MPN.
Pacific Bell submitted the doctor's request to UR, and the reviewer approved one of the two medications that Parrent's doctor wanted him to get.
Parrent protested, but Administrative Law Judge Charles Ellison found Parrent's participation in the MPN did not preclude Pacific Bell from referring the treatment recommendations of Parrent's doctor to UR.
Ellison further found that if Parrent disagreed with the UR decision, his remedy was the IMR process.
Parrent sought reconsideration of the judge's decision, but a Workers' Compensation Appeals Board panel upheld it in August.
Commissioners Katherine Zalewski, Deidra Lowe and Marguerite Sweeney said the treatment recommendations of an MPN physician, if disputed by the insurer, are required to be reviewed through the UR process.
McLaughlin petitioned the 4th DCA for a writ of review last month, arguing that MPNs are a "separate vehicle" for employers to provide care for industrial injuries, and it is "a manifest distortion" of the statutory process set forth in Sections 4616.3 and 4616.4 to say the UR/IMR process can also apply to treatment disputes involving a worker within an MPN.
UR is covered by Section 4610, which requires that every employer establish a UR process to approve, modify, delay or deny treatment recommendations by physicians.
If the UR decision modifies, delays or denies the treatment recommendation, Section 4610.5 says the employee can challenge this decision by going through IMR.
The statute further provides that a UR decision may be reviewed or appealed only by IMR, and Section 4616.6 says that the IMR decision "shall be deemed the decision of the administrative director (of the Division of Workers' Compensation) and shall be binding on all parties."
Since the procedure set out by Sections 4610 et seq., and one that follows the procedure set out for appealing decisions within the MPN, both culminate with an IMR decision that is deemed the decision of the administrative director, McLaughlin told WorkCompCentral that it's simply not possible for a treatment dispute to go through both processes.
If they do, he said, that'd give rise to the potential for conflicting decisions from the "MPN IMR" and the "4610 IMR."
If both decisions represent the opinion of the AD, McLaughlin insisted that makes the law "schizophrenic."
McLaughlin also noted that there are differences in the IMR process provided under Sections 4616.4 and 4610.
One of the biggest difference is the fact that the "MPN IMR" doctor is required to conduct a physical examination of the worker, if the worker requests it, and the doctor can also order diagnostic tests to assist in reaching an opinion. By contrast, under the "4610 IMR" process, the worker never meets the doctor and cannot even learn the doctor's name.
McLaughlin said there is also nothing in Section 4616.4 that prohibits the WCAB from reviewing a decision from the "MPN IMR," but Section 4616.6 explicitly limits the appealability of decisions from the "4610 IMR" process.
He also argued that recognizing "MPN IMR" as being separate from "4610 IMR" furthered the public policy behind having MPNs.
Since employers get to pick the doctors in the MPN, McLaughlin suggested that employers have an incentive to create networks, and since the "MPN IMR" process affords a worker more rights than the "4610 IMR" process, and the second and third review opinion process is generally much faster than going through UR/IMR, McLaughlin said he thought that provided workers with an incentive to treat within the MPN.
Chula Vista defense attorney Rudy H. Lopez filed a response to McLaughlin's petition earlier this week, and McLaughlin's reply will be due Nov. 22.
Tim Kinsey, a defense attorney with Stander Reubens Thomas Kinsey who took a dispute over the admissibility of reports from doctors outside of an MPN all the way to the California Supreme Court in 2014, said he believed the MPN review process was never intended to be a replacement of the UR/IMR process, as he did not think the two were mutually exclusive.
Brad Wixen, an attorney who has done both defense and applicant work, said he thought there were valid arguments to be made either way.
On the one hand, he noted, the statutes governing "MPN IMR" and "4610 IMR" are very similar, and the doctors are required to follow the same medical standards. The Labor Code also doesn't expressly say that they are distinct processes.
Then again, Wixen said, it's "always a little bit precarious to read the tea leaves" when it comes to legislative intent, especially when "you're trying to infer a positive from a negative" by saying "since the Legislature didn't say they're separate, the Legislature must have meant for them to be one."
Wixen said he personally though the differences between "MPN IMR" and "4610 IMR" were "profound enough" that he thought the Legislature meant them to be separate. But, he said, there are "enough parallels" that he wouldn't be surprised if the 4th DCA finds otherwise.
Wixen also said he considered this to be an "important issue that deserves to be heard," and if it isn't reviewed by the court this time around, "it will come up again."
Alan Gurvey, an applicants' attorney with Rowen, Gurvey & Win in Sherman Oaks, said he was under the impression that there aren't many people who are aware of the "MPN IMR" process that McLaughlin is presenting to the 4th DCA.
Gurvey said his impression was that McLaughlin was trying to use "a little known and little used section of the Labor Code, to go and get a second and a third opinion within an MPN" to try to create a better opportunity for a worker to get treatment.
The denial of treatment through UR and IMR has been "rampant" ever since the systems came into existence, Gurvey said, so the MPN process may provide "another pick at the hand" and "more opportunity to have communication between the doctor and the injured worker," which may yield a more favorable result for workers in a system that many have seen as becoming increasingly unfair.