"The underlying theory behind the mistake of fact is that the IMR decision cannot be valid where it has not considered the evidence necessary to arrive at a medically sound conclusion," Alan Gurvey said. "That would mean that the reviewer did not review relevant records or reports that would potentially allow for the decisions to be medically supportable. "
Published on WorkCompCentral on 10/23/15, authored by Greg Jones
Independent medical review final determination letters are supposed to list all records that were considered when deciding if a treatment is appropriate, but applicants' attorneys say Maximus Federal Services is not doing that in all cases.
Instead, Maximus is identifying the range of dates of the medical records reviewed and the physicians who wrote those reports.
One page of an IMR letter provided to WorkCompCentral by Diane Worley, director of policy implementation for the California Applicants' Attorneys Association, lists the application for IMR, the utilization review determination and the Medical Treatment Utilization Schedule under documents reviewed. The medical records identified include documents from one provider for dates of service between March 9, 2015, and June 18, 2015, and records from another doctor for a Jan. 28, 2015, date of service.
"Some of these reports may have been key reports," Worley said. "We have no way of knowing what was contained in the date range, and what was considered or rejected by the reviewer."
By contrast, 2013 decisions the Division of Workers' Compensation posted to its website identify medical reports by name and date. The first IMR decision posted online, IMR 13-000004, says records reviewed include a Jan. 8, 2013, initial orthopedic hand/upper extremity specialist consultation report; two progress reports from the primary treating physician dated Jan. 15, 2013, and Jan. 22, 2013; the doctor's first report of injury dated Jan. 4, 2013; and the primary treating physician's progress report (PR-2) from Jan. 7, 2013.
In response to inquiries by WorkCompCentral, Division of Workers' Compensation spokesman Peter Melton said Thursday he was researching questions about how Maximus is identifying medical records.
With IMR decisions not enumerating what records were reviewed, attorneys say it's impossible to know if key reports ever made it to the reviewing physician or were factored into the decision. And without knowing what records were reviewed, injured workers have little opportunity to successfully appeal an IMR determination upholding a UR decision that treatment wasn't necessary, said Bret Graham, an applicants' attorney with the Law Offices of Robert Nava and Bret Graham.
The Labor Code identifies five grounds to appeal an IMR decision: the administrative director acted in excess of her powers; the determination was procured by fraud; the IMR reviewer was subject to a conflict of interest; the decision was the result of bias based on race, ethnicity or other protected characteristics; and the determination was plainly erroneous.
"What we can't do on any of these IMRs is prove that the IMR reviewer failed to review a critical document," Graham said. "We are not able to do that because we can't know for sure whether they reviewed it and, No. 2, the way all of the denials are phrased, you're not able to show on an appeal they failed to review the MRI that showed a torn ACL."
Graham said attorneys representing injured workers have few options other than finding all medical records, isolating the relevant findings and trying to persuade a workers' compensation judge that the conclusions of the IMR reviewer either ignored or are contrary to what's in the reports. Doing so can establish that the IMR decision is a factual mistake.
Alan Gurvey, managing partner of Rowen, Gurvey & Win, said the list of documents reviewed in IMR determinations is often "nebulous and incomplete." And without a full list of records, he said the most effective way to challenge the decision is to appeal it to a judge on the grounds that the decision is factually incorrect.
"The underlying theory behind the mistake of fact is that the IMR decision cannot be valid where it has not considered the evidence necessary to arrive at a medically sound conclusion," he said. "That would mean that the reviewer did not review relevant records or reports that would potentially allow for the decisions to be medically supportable. When specific reports are not identified by the reviewer, it leaves open the question of what the reviewer did review."
The rationale for the independent medical review process in Senate Bill 863 was to have doctors, rather than judges, making medical decisions. While attorneys aren't appealing every case for incomplete records, Gurvey said the way Maximus is writing its decisions gives them standing to do so.
But even if an IMR decision is overturned for being plainly erroneous, the only remedy available to the injured worker is to go through IMR a second time, and the employer would have to pay for a second review. Currently, employers pay $390 for standard review, $345 for pharmaceutical-only cases and $515 for expedited review.
Graham and Worley also said the decisions posted online by the DWC do not appear to be accomplishing the goal of educating providers about how to get a request for authorization approved.
Worley said the clinical case summaries posted online only explain the rationale to support the determination. There is no narrative about how the medical evidence was weighed or considered, and nothing about what Maximus is looking for in treatment requests, she said.
Graham questioned why IMR denial rates continue to stand at about 90% almost three years after IMR was first introduced.
"It cannot be the case that the treating doctors are still requesting treatment almost universally in non-compliance with the Medical Treatment Utilization Schedule, Official Disability Guidelines and other evidence-based treatment guidelines," he said. "If this were the case, then almost all treating doctors would have been removed from the MPNs by now based on habitually requesting treatment not within the treatment guidelines."
Steve Cattolica, director of government relations for the California Society of Industrial Medicine and Surgery, also said the IMR decisions posted online aren't very educational.
"The medical community would find these to be excellent learning tools if there was some clinical information in them, but there isn't," he said.
Cattolica said right now, the onus is on the treating physician to make sure the authorization request and medical records indicate not just what treatment the injured worker needs and why the worker needs it, but also what's going to happen if the treatment is denied.
This is particularly important for cases involving chronic injuries, where it may not be possible to demonstrate the treatment will lead to functional improvement. For these cases, it's imperative for doctors to identify that the injured worker can't get any better, but the requested treatment will accomplish functional maintenance and without it, the worker will get worse.