UR denial and pd (California)

This category is meant for discussion of technical legal issues in workers' compensation. If you are an injured worker, do not ask questions here. Go to the Injured Workers' forum.

UR denial and pd (California)

Postby lacompfun on Sun Feb 24, 2019 7:51 pm

Scenario

1. Doi 2017 specific.

2. UR denies knee surgery. No IMR

3. Applicant self procures knee surgery that goes bad.

Question

1. Is defendant liable for PD due to self procured surgery?
lacompfun
 
Posts: 498
Joined: Mon Mar 09, 2015 11:58 am

Re: UR denial and pd (California) (California)

Postby 50Cal20 on Mon Feb 25, 2019 8:17 am

Good question. Be prepared for an onslaught of opinions on this matter. All I can say is that two years ago there was an actual case with almost exactly the same circumstances you mentioned. The judge awarded PD and commented, although the law says UR and IMR have the final say on medical necessity, he has the final word on PD. He awarded PD on a case where surgery was never authorized by the defendant since it had been denied by UR. The appeal of the PD award went all the way to the CA Supreme Court who refused to hear the case. So in answer to your question, whether or not PD can be awarded all depends on who the judge is.
50Cal20
 
Posts: 166
Joined: Thu Jul 29, 2010 8:59 am

Re: UR denial and pd (California)

Postby vampireinthenight on Mon Feb 25, 2019 10:13 am

I would think the IW at least needs a QME to opine that the surgery was reasonably necessary first. If the IW can get the QME on board, then he/she should have a chance depending on the particulars.
User avatar
vampireinthenight
 
Posts: 1128
Joined: Wed Mar 11, 2009 7:53 am

Re: UR denial and pd (California)

Postby mytwocents on Tue Feb 26, 2019 8:35 am

There’s an unpublished appellate decision, Leprino Foods v. WCAB (Barela) 75 CCC 415, where the Board and the Court allowed the increased PD. The Board reached a contrary conclusion in Ribeiro v. WCAB 80 CCC 1222, writ denied. The distinction between the two was that in the first case the AME ultimately said the self-procured surgery was reasonable and necessary, but not in the second case. Both of these cases were pre-IMR. The problem for a 2017 case is that AMEs and QMEs are prohibited from commenting on medical necessity issues. Perhaps if the doctor did it anyway, a WCJ could rely on the opinion to award increased PD. On the other hand, absent a Dubon situation, the Board isn’t supposed to address medical necessity either. I think the applicant in this case would have an uphill battle if the surgery "went wrong" and made him worse. In Barela, the applicant got a very good result from the surgery and the only reason the PD was higher was because of the way the AMA Guides are applied.
mytwocents
 
Posts: 330
Joined: Wed Dec 19, 2012 1:58 pm

Re: UR denial and pd (California)

Postby vampireinthenight on Tue Feb 26, 2019 9:28 am

If self-procured can result in TD indemnity (if the QME supports it), it is not a far stretch to apply it to PD as well. I agree it is tempting to look at the outcome of the procedure, but we all know that many procedures (more than we like to admit) have failed results. That's why I think a WCJ would rather look at whether the procedure was medically reasonable prior to it taking place.
User avatar
vampireinthenight
 
Posts: 1128
Joined: Wed Mar 11, 2009 7:53 am

Re: UR denial and pd (California)

Postby jpod on Tue Feb 26, 2019 9:50 am

I am not sure a WCJ decision on PD, that is based on an opinion from a QME that medical treatment was reasonable, holds water b/c LC 4600 defines reasonable medical treatment to be treatment requests determined through the UR/IMR process to comport with the MTUS. The post indicates UR was done but no IMR.

The goal of UR/IMR is to prevent injured workers from being subjected to treatment that is substandard, unreasonably invasive etc.. I'm not an attorney but doesn't the phrase "law of the case" apply in this scenario? The issue of reasonableness was settled through UR and the decision to not appeal UR to IMR; how can a WCJ, relying on a QME opinion, come to a different conclusion on whether the treatment was reasonable and usurp the "law of the case"?
jpod
 
Posts: 771
Joined: Fri Mar 06, 2009 1:21 pm

Re: UR denial and pd (California)

Postby mytwocents on Tue Feb 26, 2019 5:25 pm

PD is different from TD because it’s not an all or nothing proposition. The additional PD arising out of the UR denied treatment can be apportioned out. That’s what happened in Ribeiro where 75% of the PD was apportioned to non-industrial factors including the self-procured surgery. And her claim for TD following the surgery was denied too. While it’s true that surgery that initially seems like a good idea often goes wrong, and it’s true that some UR denials make absolutely no sense, with UR/IMR there’s no opportunity for a WCJ to come to a different conclusion prior to the surgery taking place, absent a Dubon situation. After the fact, if the UR denial was based on the premise that the surgery was unlikely to provide a benefit, it would be hard to argue it was reasonably necessary after a bad result. In the case presented by lacompfun, the failure to request IMR may well prove to be fatal, especially if the applicant was represented. However, there may be situations where the additional PD would be allowed, as vampire has pointed out. I just don’t think it would happen in the case under discussion.
mytwocents
 
Posts: 330
Joined: Wed Dec 19, 2012 1:58 pm

Re: UR denial and pd (California)

Postby vampireinthenight on Fri Mar 01, 2019 8:59 am

I'm not an attorney but doesn't the phrase "law of the case" apply in this scenario? The issue of reasonableness was settled through UR and the decision to not appeal UR to IMR; how can a WCJ, relying on a QME opinion, come to a different conclusion on whether the treatment was reasonable and usurp the "law of the case"?


That's an interesting angle, but a UR decision is certainly not a finding from a judicial body and would not constitute a law of the case. I suspect an IMR decision probably wouldn't qualify either.

There's a few potential ways a WCJ could try to get around the reasonableness problem. First, the WCJ might find a way to shift the burden to Defendant to show the treatment was unreasonable. I think you are correctly looking at 4600, however, to the UR reports really speak to the treatment as "unreasonable"? The ones I see typically use phrases like "non-certified" or "not medically necessary". That means you really have to hang your hat on the definition of LC4600.

While I think this could work as a defense, I also think a QME opinion would be admissible, not for liability of treatment, but to rebut the conclusion of the UR report as it affects PD. Although the QME would likely still need to show that the treatment is reasonable under the MTUS, which do you think is going to be the better evidence, a UR report (typically a small paragraph and often based on a lack of documentation) or a QME report?
User avatar
vampireinthenight
 
Posts: 1128
Joined: Wed Mar 11, 2009 7:53 am

Re: UR denial and pd (California)

Postby jpod on Fri Mar 01, 2019 10:28 am

I agree the UR decision alone would not qualify, but I think the UR decision and the failure to exhaust administrative remedies via IMR should at least be the "posture" of the case. It is what happened and can't be ignored. I'd argue the employee did not appeal and having done so can not do an end around the dispute resolution process by asking a WCJ to rule on reasonableness. I think a WCJ could refer the issue of reasonableness to IMR though, and if it comes back as reasonable then bombs away. I think the latter is the most reasonable approach: it comports with the mandate that doctors decide reasonableness not WCJs and allows for an appeal in the best interest of justice given the public policy behind the WC Act.

Another tact would be to argue that this case differs from the Costco case which rejected arguments the bad result of a surgery and the resulting impairment is not PD "directly caused by the injury". In this case it was found the surgery was unreasonable and my guess is it was done outside the MPN, so the reasoning in Costco would not apply due to the different fact pattern.

I disagree that an IMR decision is not an executive branch judicial finding. As I understand the reasoning behind the opinions which upheld the constitutional challenges to UR and IMR the Courts found the AD's IMR ruling carries the same weight that a WCJ decision used to carry on the reasonableness of medical care. The Constitution provides for several potential methods for resolving disputes. The Legislature mandated UR/IMR as the method to resolve disputes on the reasonableness/necessity of medical treatment. The Legislature declared what amounts to a public policy that medical professionals decide medical issues not WCJs.

The problem with this tact though is the cost/benefit analysis. The "bad result" would have to be costly enough to justify being willing to take the issue to the CoA and beyond.
jpod
 
Posts: 771
Joined: Fri Mar 06, 2009 1:21 pm

Re: UR denial and pd (California)

Postby vampireinthenight on Fri Mar 01, 2019 1:14 pm

You know, I'm not really sure, but I always thought of the law of the case to be based on a judicial finding (ie of the courts). IMR was declared constitutional because it is still "subject to review of the courts", even if it is in such an extremely limited circumstances. I'm not sure that equates it to a judicial finding, but maybe it does. There are not any of the hallmark characteristics like presentation of testimony, rebuttal, etc... I guess what I am saying is that it without a full opportunity to contest the UR/IMR decisions, you will probably see a resistance to use it like a "law of the case", or what we also sometimes refer to as "issue preclusion". If you research civil case law on subjects like collateral estoppel and issue preclusions you will see a general theme that a party must have a full opportunity to litigate an issue. The way IMR is set up may have been deemed constitutional, but it might not meet the demands of creating a final finding of fact to then be used in other issues.

It is what happened and can't be ignored. I'd argue the employee did not appeal and having done so can not do an end around the dispute resolution process by asking a WCJ to rule on reasonableness.


I think what you would see is the WCAB divorcing the two issues. It will likely deny that it is ignoring the UR/IMR, insofar as it relates to liability for treatment. The WCAB would likely characterize the PD as a separate and distinct issue, where they are only bound by the restraints of causation, ie, if the PD was directly caused by the industrial injury.
User avatar
vampireinthenight
 
Posts: 1128
Joined: Wed Mar 11, 2009 7:53 am

Next

Return to Legal

Who is online

Users browsing this forum: No registered users and 2 guests