“(Judges) are all taking this very seriously that based on the Patterson v. The Oaks Farm case that they believe that this line of thinking is proper,” Gurvey said. “And it's coming before the administration, so it’s putting a monkey wrench in all of these situations where the defendant is unilaterally attempting to stop treatment through the utilization-review process.”
Published on 03/24/2015 by WorkCompCentral
Applicants’ attorneys say that a statement last week by the California Division of Workers' Compensation – spurred by national coverage of an insurer's decision to cut off home health care – gives them more ammunition in a long-standing dispute over whether the 2012 reforms give employers and carriers an opportunity to challenge ongoing medical care.
The California Division of Workers’ Compensation put out a newsline Thursday reminding payers and claims managers that Senate Bill 863 didn’t change their obligations to provide medical care to claimants.
Specifically, the newsline addressed a topic at the core of one of the stories in an article by National Public Radio and ProPublica – sending a medical treatment through the utilization review and independent medical-review process without any change in the worker’s condition prompting such reconsideration. Division spokesperson Peter Melton confirmed that the statement was in response to the NPR/ProPublica investigation.
The article told the story of Joel Ramirez, a warehouse supervisor in Rialto who suffered a spinal injury in 2009. Travelers paid for a home health aide for Ramirez for years, until SB 863 passed and the company allegedly cut off payments without a change in the claimant’s condition.
The DWC announced last week that it was auditing Travelers as a result of the story. A spokesperson for Travelers declined to comment on the story, citing the patient’s privacy.
Melton said the division isn’t aware of any other specific instances of workers being denied care without a change in medical circumstance, but pointed out that the NPR/ProPublica article mentioned that others had gone through similar ordeals as Ramirez. The division is also in the process of auditing Sedgwick Claims Management Services regarding the death of claimant Charles Romano after the company allegedly denied his care in a case that preceded the NPR/ProPublica coverage.
However, claimant’s attorney Alan Gurvey said, the use of SB 863 as an argument to deny care is nothing new. Since the passage of the bill, he said he has seen the defense in many of his cases argue that the reforms constituted a “change in circumstance” warranting a review and possible denial of medical treatment. He said such moves were essentially a means of cutting back on medical expenses without justification.
“That's all it is, cost containment,” Gurvey said. “It has nothing to do with what's right for the injured worker from a medical perspective.”
Home health care, which is the type of aid that Travelers allegedly cut off, has been a popular target of such arguments, Gurvey said.
“There's always been a debate whether home health care is actually a form of – quote, unquote – treatment, medical treatment,” he said.
But the confluence of the news coverage, the DWC’s responses and a significant panel decision handed down last year have begun to turn the tide in California courtrooms, Gurvey said. He cited a case he argued last week in which he brought a WorkCompCentral article into the courtroom to show the judge statements from Department of Industrial Relations Director Christine Baker and Secretary of Labor David Lanier that Travelers’ actions were not the intent of SB 863.
“We'd had four orders after the agreement for the continuing provision of the home care and the defendant had filed a petition to terminate the agreement,” Gurvey said. “We went before the judge and the judge unequivocally said that without a change of circumstances she sees no reason why the agreement for the home health care provision should be changed. She said she would entertain penalties and attorney fees for having to try the issue when the defendant did not necessarily meet its burden to show change of circumstances.”
A Workers’ Compensation Appeals Board significant panel decision handed down last year in the case of Patterson v. The Oaks Farm also gave applicants and their attorneys something to cite when the defense seeks to review care without a change in circumstances, he said. In that case, a panel ruled that an injured worker didn’t need to go through utilization review to reinstate payments for a nurse case manager after her employer unilaterally cut off reimbursements.
But defense attorney Timothy Kinsey warned that the chain of events following the Patterson decision and the DWC’s press release could scare some employers away from paying for medical treatment quickly.
Kinsey said the Thursday newsline failed to distinguish between a payer agreeing to provide medical treatment and a payer voluntarily picking up medical treatment. He said payers will sometimes voluntarily pay for medical treatment, but still want to review the request to make sure it’s medically necessary.
After seeing the DWC’s statement, however, he said that employers might not be willing to voluntarily pay for treatment before sending it through UR.
“People are going to deny it right off the bat,” he said.
William Zachry, manager of Safeway’s self-insured workers’ compensation program and one of the employer representatives involved in crafting SB 863, said he couldn’t comment on the Ramirez case because he wasn’t familiar with the details, but he did say that he expects any abuse of the system to be rooted out.
“If there are any abuses, I'm quite sure that the Division of Workers’ Compensation will seek them out and address them,” he said.
However, he said, the system is supposed to address some of that abuse automatically. While the DWC acts on allegedly inappropriate denial of care, he said UR and IMR are meant to act as gates through which inappropriate and unnecessary treatments don’t pass.
“There are a significant number of situations where there have been ... inappropriate requests for treatment that are not made (within) evidence-based medicine,” Zachry said.
Despite the recent news, Zachry said the review process is working for most people.
“It significantly has improved the quality of care for the injured workers of California, I am absolutely convinced about that,” he said.