Published on 07/16/2014 by WorkCompCentral, authored by Greg Jones
A Southern California judge, in striking down an independent medical review decision and ordering the injured worker to receive the denied treatment, joined the chorus of detractors who say the new administrative process for resolving treatment disputes is creating delays and improperly denying care.
Although the decision doesn't set precedent and can be overturned by the Workers' Compensation Appeals Board, the judge's scathing rebuke of the IMR process drew applause from injured workers and applicants' attorneys. Those on the employer side, on the other hand, characterized the decision as nothing more than a zealous end-run around existing statutes and regulations.
Workers’ Compensation Administrative Law Judge John C. Gutierrez in Van Nuys on Monday ruled that Ralph Loynachan is entitled to 24 sessions of psychotherapy each year for a brain injury he suffered in October 2009 while working for Los Angeles County.
Loynachan received 24 therapy sessions each year since 2010, but a Sept. 20, 2013, utilization-review decision modified the treatment to six sessions of psychotherapy.
The UR decision said while the treatment is medically necessary, “the relatedness of this condition to the industrial injury has not been determined.” In light of the fact that the nature of the injuries was already declared to be industrial, Gutierrez said this was a “troubling statement.”
The Dec. 4, 2013, IMR determination that upheld the UR decision was also invalid because it was based on an incorrect medical standard, according to Gutierrez. The IMR reviewer, in affirming the UR decision to reduce the number of therapy sessions to six, said the sessions were not medically necessary and appropriate because of a lack of evidence that the sessions “will lead to a complete recovery of functional cognitive learning skills because the mild traumatic brain injury is interfering with cognitive function.”
Gutierrez said the correct standard for determining what constitutes reasonable and necessary treatment is not what is “medically necessary and appropriate,” but is what is necessary to “cure or relieve” an injured worker from the effects of an industrial injury.
He also took exception with the suggestion that Loynachan wasn’t entitled to the treatment because his condition rendered it less effective than it would be had he not suffered a brain injury.
“For IMR to further state as its rationale for re-affirmation of the UR denial, that applicant’s neurological deficits are interfering with the effectiveness of the psychotherapy sessions is quite demeaning, and contrary to the Official Disability Guidelines, with little regard whatsoever for the dignity of the applicant’s quality of life or, for that matter, the applicant’s mental well-being in preventing further deterioration,” Gutierrez wrote.
In a decision reminiscent of Dubon, a case in which an administrative judge ordered medical treatment after finding a utilization review decision to be invalid, Gutierrez awarded Loynachan the denied therapy sessions.
Alan Gurvey, managing partner of the Law Firm of Rowen, Gurvey & Win, said his client went to the therapy sessions for seven months while trying to resolve the dispute. Gutierrez initially said he wasn’t sure he could render a decision in the case because IMR decisions, although issued by physician reviewers under contract with Maximus Federal Services, are technically an order by the administrative director.
After the administration said it would not take action to oppose an appeal, the case went to trial. Gutierrez on June 23 issued his first order awarding Loynachan the 24 annual therapy sessions.
The judge on Monday amended his decision to provide clarification on the proper remedy for an invalid IMR determination that Gurvey said he requested.
“What we asked of the judge is, if UR is invalid, doesn’t that necessarily make IMR invalid?” he said.
The amended decision added new language declaring that in addition to using the wrong legal standard for determining appropriate care, the invalid UR decision “tainted the validity and integrity of the IMR determination,” and that the request doesn’t have to be resubmitted to IMR because the UR was invalid.
Gurvey said the requirement to resubmit treatment disputes to IMR when a judge strikes down as invalid a final determination points to a conflict in the law. Because there is only one contractor performing IMR for California’s workers’ compensation system and the reviewers are anonymous, he said there is no way to actually know whether the request has been assigned to a different reviewer as required by law, he said.
Richard Jacobsmeyer, a founding partner of workers’ compensation defense firm Shaw, Jacobsmeyer, Crain & Claffey, said Gutierrez’s decision is “interesting,” but appears to be at odds with the statutory scheme that allows a judge to determine an IMR decision is invalid but not to rule on medical necessity.
“The WCJ attempts to justify his way around the statutory scheme by arguing that the IMR decision is based upon an incorrect legal standard,” Jacobsmeyer said in an email. “His decision that the legal standard is incorrect, however, involves a medical judgment which he is precluded by law from making. He is relying on the opinion of the AME to determine the (treatment) is necessary, which means he is making a medical determination, not a legal one.”
He said the case is an ideal situation for the judge to remand with instructions that the determination was based on a clear factual error. Based on the finding in the IMR determination that the treatment is reasonable but liability is undetermined, instruction from the judge that liability has been established should result in an IMR determination that the treatment is appropriate, he said.
Jacobsmeyer also said that the decision has no precedential value and is unlikely to withstand scrutiny from the Workers’ Compensation Appeals Board. If the decision stands, it could lead to appeals on virtually all IMR decisions, he said, noting that the number of requests for review has been between about 15,000 and 20,000 each month since August.
In the first six months of 2013, when only dates of injury on or after Jan. 1, 2013, were eligible for IMR, a total of 870 requests were submitted. The number of requests increased to 4,410 in July when all dates of injury became eligible, and climbed to 15,731 in August.
In subsequent months, the number of requests ranged from a high of 14,990 in September to a low of 11,571 in March. In April the number of requests jumped 70% to 19,663.
The DWC did not respond to an email requesting information for the number of requests in May or June and asking if the administration has any thoughts as to why the number of requests spiked in April.
Gurvey said he thinks the number of requests is high and will remain high in part because he and other applicants’ attorneys would be remiss if they didn’t appeal every UR decision delaying, denying or modifying a treatment request.
“We feel we have an obligation to file IMR appeals because if it means our client’s treatment is denied without due process, we could be sued for malpractice,” he said. “I’m not trying to clog up the system. I’m trying to protect clients and in the end, I also have to protect our firm.”
Gurvey said on IMR determinations such as the one in Loynachan’s case, he would rather go straight to the WCAB
He also suggested that one reason for the increase in claims could be that insurance carriers are taking advantage of the fact that all dates of injury are eligible for IMR to cut off treatment on old claims.
Prior to the implementation of IMR, when the WCAB had the authority to determine whether treatment is reasonable and should be ordered, a carrier challenging the appropriateness of treatment had to pick a new medical evaluator and faced the possibility of penalties for unreasonably delaying treatment if the board ultimately determined the care was appropriate.
On July 1 – the day Gurvey said “the lights went out in Georgia” – carriers were given the ability to deny treatments and rely on IMR to uphold the denial. The IMR fee of $560 for a standard review prior to April 1 and $420 for reviews after that date is cheaper than the cost of potential penalties and attorney fees, he said.
Jim Butler, president of the California Applicants’ Attorneys Association, said in an email that he doesn’t know why the number of IMR applications increased in spring, but said he has also noticed “an increase in insurers putting old medical through UR and cutting off medical care.”
Butler said he agrees with the determination that when a UR or IMR decision is invalid, the insurer should not have a second opportunity to delay or deny medical care. He also said he agreed with Gutierrez’s opinion that the entire process is an encumbrance on the delivery of medical benefits.
“Secret doctors with no accountability are defying our laws and denying care to injured workers,” he said.
In his amended decision, Gutierrez said the statutory requirement that an overturned IMR decision be resubmitted for a second review and the fact that the subsequent review could again deny the treatment with a determination that would remain in effect for one year is tantamount to Constitutionally-prohibited double jeopardy.
He also said the UR and IMR processes, by severely limiting access to reasonable and necessary medical care, threaten to run afoul of the mandate in the California Constitution that the workers’ compensation system created under the plenary powers of the Legislature accomplish “substantial justice” without “encumbrance of any character.”
“In my opinion, it would appear that our current workers’ compensation laws were guided through the Legislature and devised by a certain capital class and their lobbyists with powerful financial influence, who by their actions do not appear to value the well-being of injured workers, and would rather see the return of the industrial revolution, and rid capital industry of the responsibility placed upon industry by the ‘bargain,’ whereby the current law severely limits access to medical care or treatment; and would prefer to have injured workers and their affected families place their faith and reliance on charity and an injured worker’s rugged individualism in coping with catastrophic economic and residual health effects caused by an industrial injury,” Gutierrez wrote.
Steve Smith, a spokesman for the California Labor Federation, said Gutierrez’s characterization of the coalition of labor unions, business groups and lawmakers including Gov. Jerry Brown, who negotiated Senate Bill 863 “doesn’t ring true” and is “completely off-base.”
Smith said the negotiations around the 2012 reform bill that introduced IMR to California’s workers’ compensation system were intended to ensure that the system was sustainable and that more money would go to injured workers.
“We’re proud of the effort to reform workers’ compensation,” Smith said. “It was a Herculean task because you had a stalemate for years coming up with a comprehensive reform package to sustain workers’ compensation so it will be there for workers when they need it most.”
Jesse Ceniceros, president of Voters Injured at Work, however, said he was “shocked” to see a judge make such a blunt statement and called Gutierrez a “hero” for acknowledging that the system is broken and is hurting injured workers.
“I can’t applaud him enough for ruling the way he did and with the comments he made,” Ceniceros said. “He knows the suffering that the injured workers are going through.”