Alan Gurvey predicted that litigation will "chip away at UR as we know it until there will be more transparency and more accountability." He said that it "will be a long, drawn-out process" but eventually decisions from these cases will form a "step-by-step guide" on reshaping the UR system. As a practical matter, Michael Win added that requiring UR decisions to be signed by the reviewing doctor gives reassurance that the decision was the reviewer's and not a "cut and paste" job.
Published on 04/18/2014 by WorkCompCentral, authored by Sherri Okamoto
The California applicants' attorneys say a Workers' Compensation Appeals Board panel decision issued last week gives them a new avenue to invalidate an adverse utilization-review decision.
In Weilmann v. United Temporary Service, a board panel ruled that UR decisions issued by doctors who had not signed their decisions, and who had not seen the reports of the agreed medical evaluator, were invalid.
Based on the WCAB's en banc decision last month in Dubon v. World Restoration, this means that the board will decide the medical necessity of the treatment being requested by Lisa Weilmann's doctors, not Maximus Federal Services.
Maximus currently holds an exclusive contract with the California Division of Workers' Compensation to provide independent medical review of UR decisions, a process launched by passage of Senate Bill 863 in 2012. Maximus' contract is up in December. The state is now soliciting bids from vendors interested in taking over.
In the Dubon case, the WCAB ruled that medical necessity is not subject to the independent medical-review process created by SB 863 when the underlying UR is invalid. Instead, the WCAB said it will resolve such disputes itself.
Weilmann's attorneys say the Dubon and Weilmann decisions show how case law is likely to reshape the way UR is done.
Alan Gurvey of Rowen, Gurvey & Win predicted that litigation will "chip away at UR as we know it until there will be more transparency and more accountability." He said that it "will be a long, drawn-out process" but eventually decisions from these cases will form a "step-by-step guide" on reshaping the UR system.
"It is too bad that the (administrative) regulations aren't doing it, the legislature isn't doing it, and many times the judges aren't doing it," Gurvey said.
As a practical matter, Michael Win – Gurvey's colleague – added that requiring UR decisions to be signed by the reviewing doctor gives reassurance that the decision was the reviewer's and not a "cut and paste" job.
Gurvey and Win took over the representation of Weilmann, a clerical worker for United Temporary Services, after the death of her original attorney, the late Kenneth H. Rowen. Weilmann had filed a workers' compensation claim based on a cumulative trauma injury to her upper extremities and neck, fibromyalgia, and a psychological condition.
She resolved her claim with United by stipulation in 2002, agreeing to accept benefits based on a 55% permanent disability and the provision of future medical treatment.
Last fall, her treating doctors requested authorization to provide her with Botox injections for her migraine headaches and Xyrem, a prescription medication designed to treat symptoms of excessive daytime sleepiness. United's comp carrier, the Zenith Insurance Co., submitted the requests to utilization review by Genex Services.
The Genex reviewing doctors denied the requests, but none of the doctors signed their reports.
Workers' Compensation Judge Yvonne Jones declared the decisions invalid because of the missing signatures.
"A medical report or any document is incomplete unless it is signed by the author," Jones opined. "A signature is not a mere formality but is an integral part of a finished document."
She also said that United and Zenith should have provided the UR doctors with a copy of the reports from the agreed medical evaluator who had been seeing Weilmann for years. The judge further found that the UR doctors were not competent to evaluate the treatments being requested by Weilmann's doctors since the treatments were not within the scope of their practice areas – physical medicine and rehabilitation.
Jones then ordered United and Zenith to authorize the treatments that Weilmann's doctors had asked for.
United and Zenith sought reconsideration, arguing that the failure of the UR doctors to sign the reports was a minor defect. In support of that argument, attorney Ekatherina "Kate" Zarutsky of Shaw, Jacobsmeyer, Crain & Claffey, cited the WCAB's 2004 en banc decision in Willette v. AU Electric Corp.
The Willette case involved an unsigned UR report that was being submitted to the WCAB for consideration in a treatment dispute. The board ruled that the report was admissible.
If unsigned reports are admissible at the WCAB for consideration, Zarutsky argued that "it makes no sense" to require a UR reviewer's signature for reports that are specifically not intended for consideration by the WCAB. She also pointed out that the reports provide the name, practice area and license number of the reviewing doctor, so the doctor's signature adds nothing substantive to the report.
Zarutsky further insisted it would be "completely impractical to require the UR reviewer to consider a complete copy of the medical file for each review" because of tight deadlines they face in getting opinions out.
Along this same vein, she said it would be impractical to require doctors to take the time to sign every decision they make, and she warned that imposing such a requirement could lead to delays in the issuance of decisions.
Zarutsky went on to argue that there is no statutory requirement that a UR doctor be licensed in the same specialty as the doctor who made a treatment request for the UR doctor to be qualified to do the review.
The WCAB was not persuaded by her arguments.
On April 9, a panel comprised of Chairwoman Ronnie Caplane and Commissioners Frank Brass and Deidra Lowe affirmed Jones' finding.
The board adopted and incorporated all the aspects of Jones' decision, except for her discussion as to the competency of the UR doctors. The board said the fact alone that the UR reviewers had not signed their reports and had not considered the AME report was "sufficient to undermine integrity of the UR decisions."
However the board cautioned that a finding that the UR denials were invalid didn't automatically entitle Weilmann to the treatment sought. Weilmann "must still provide substantial medical evidence that treatment is reasonable and necessary," the board said, but deferred ruling on the issue.
Defense attorney Richard M. "Jake" Jacobsmeyer said Thursday that United and Zenith had not yet decided whether to request judicial review of the panel decision. Since the decision didn't issue an award of the disputed treatment to Weillmann, Jacobsmeyer said he wasn't sure if the ruling could be taken up on a writ to the Court of Appeal yet.
Even if it could be appealed right now, Jacobsmeyer said he personally wasn't sure if the Weilmann case ought to be "one of the ones we draw the line in sand on."
In light of the WCAB's decision in Dubon, Jacobsmeyer said he though many applicants' attorneys are going to be challenging adverse UR decisions, so the Weilmann case is just one of many that will be hashing out what makes a UR decision valid.
According to the WCAB's Dubon decision, it can overturn UR decisions that are untimely or suffer from "material procedural defects." What constitutes a "material procedural defect" is something that needs to be further developed by case law.
In Dubon, the board said the failure to provide the reviewing doctor with reports from the worker's would-be orthopedic surgeon, primary treating physician, and the AME was fatal.
Jacobsmeyer said he's not sure what would qualify as an "insubstantial or non-material flaw" since the WCAB has not provided any examples, and "so far everything they've seen has been a basis for saying the UR was invalid."
What he said he was most concerned about was the statement in Dubon, and in Weilmann, that the defendants are obligated to provide the UR reviewers with the records the UR doctor needs to see. Such a duty is "not in any statute, and its not in any regulation," Jacobsmeyer contended. He said he is waiting to see if this "glaring flaw" gets corrected. The State Compensation Insurance Fund, which was the carrier in the Dubon case, has petitioned the WCAB for reconsideration of that matter.
Defense attorney Christopher Philippides of Mullen & Filippi said Thursday that he thought the Weilmann ruling was "a terrible decision" that undermines the UR/IMR scheme the Legislature intended to implement with the passage of SB 863.
He said that invalidating a UR decision because of the lack of a signature seemed to be an elevation of "form over substance," and could be an ominous sign that the board "will be taking every opportunity to challenge UR determinations on non-substantive grounds."
San Diego applicant attorney John Don agreed that the Weilmann decision is a harbinger of what's to come.
He posited that the case is "a good example of what we are going to be seeing until IMR is declared unconstitutional," since workers "will be going over each UR denial for deficiencies" in order to get the care their doctors day they need.
As time goes on, Don said all the players in the comp system will get a better idea of what constitutes a defect that "undermines the integrity of the UR process" and "what is a ticky-tacky foul which should be disregarded." He said he thought the WCAB would likely allow for "some latitude" in terms of matching a UR reviewer with a treatment request, and that a mismatch of specialties "will not often torpedo the UR denial."
The unsigned UR decision also is not likely to be a common problem, Don added. He said he has seen about a thousand UR decisions over the last few years, and there have maybe been 10 that were unsigned. However, Don said he thought it was important to have the UR doctor sign reports because "otherwise, there is no way of telling whether the UR doctor actually read what was typed up and sent out."
He said he also thought that at the very least, UR doctors need to get the most recent AME report from a case – if there is an AME report.
"When all is said and done, the WCAB wants meaningful UR reviews which properly discuss the workers' complaints and the application of the treatment guidelines to these symptoms," Don said.