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.

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

Postby jpod on Fri Mar 01, 2019 3:39 pm

I see your point on law of the case; I have seen it arise in civil cases when the CoA rejects an attempt of a party to re-litigate the issue b/c the party did not timely appeal, or preserve the issue so it could be appealed.

I appreciate the differences you highlighted between a civil trial, with pre-trial motions/decisions, trial court objections to preserve issues etc. and the UR/IMR administrative dispute process and concede your points likely carry the day.

I still have an issue with a WCJ basing a PD decision on a QME's opinion on reasonableness of medical treatment unless the WCJ takes the QME opinion into consideration and orders an IMR to validate. In a sense it is an IIMR much like the old IME from decades past was a tool a WCJ employed when faced with competing ML reports and was uncomfortable with either of the two "extreme" opinions and did not think splitting the baby was appropriate either
jpod
 
Posts: 771
Joined: Fri Mar 06, 2009 1:21 pm

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

Postby jpod on Fri Mar 01, 2019 11:02 pm

What do you think of the argument that the non-certed, non appealed Sx that led to a bad result represents a significant break in the "chain of events of the case" (a la Law of the Case) that the resulting PD post non-certed/non-appealed sx must be apportioned to comply with LC 4664? Can the results really be the "direct cause" when there was a deviation/rejection of Legislative scheme?

I can't remember if the Costco case addressed this issue. My recollection of the Costco case was the result was already the norm, if not settled law; i don't recall any UR/IMR/MPN opt out issues were involved in that case.
jpod
 
Posts: 771
Joined: Fri Mar 06, 2009 1:21 pm

Re: UR denial and pd (California)

Postby mytwocents on Sat Mar 02, 2019 12:34 pm

What's the Costco decision? Do you have a citation?
mytwocents
 
Posts: 330
Joined: Wed Dec 19, 2012 1:58 pm

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

Postby vampireinthenight on Mon Mar 04, 2019 9:06 am

Can the results really be the "direct cause" when there was a deviation/rejection of Legislative scheme?


In my mind, that is the issue.

Probably what you would want to do is draw a corollary with the authorities on the refusal of medical care. When an IW unreasonably refuses medical treatment, the estimated PD resulting from the unreasonable refusal of care is not compensable. In that situation it is sort of seen as an intervening act.

The problem you would need to work through is the differences between the two scenarios. With the surgery (and esp if the QME is on board), the IW will have medical evidence that the surgery might have helped, where you wouldn't have that with the refusal of medical treatment.
User avatar
vampireinthenight
 
Posts: 1128
Joined: Wed Mar 11, 2009 7:53 am

Re: UR denial and pd (California)

Postby jpod on Mon Mar 04, 2019 10:01 am

I don't have the full citation but you can google it and it comes up:

Court of Appeal, Second District, Division 4, California.
MAUREEN HIKIDA, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, COSTCO WHOLESALE CORPORATION et al., Respondents.

B279412
Decided: June 22, 2017

Note some of the language from the decision: "...We further conclude that despite significant changes in the law governing workers' compensation in 2004, disability resulting from medical treatment for which the employer is responsible is not subject to apportionment. Accordingly, we annul the Board's order and remand for an increase in petitioner's disability award.

The logic as expressed is that if the treatment that resulted in a bad outcome was treatment for which the employer was liable for as mandated in LC 4600's "reasonable and necessary" standard, the bad result from said "reasonable and necessary" treatment is covered. In the original post that chain of events was broken, such that it can not be said that treatment provided that led to a bad result was "reasonable and necessary" and therefore the causative chain has been broken and the resulting PD is no longer a direct result of injury and/or relates to treatment for which the employer was obligated to provide.
jpod
 
Posts: 771
Joined: Fri Mar 06, 2009 1:21 pm

Re: UR denial and pd (California)

Postby mytwocents on Mon Mar 04, 2019 11:12 am

I don’t see how the Hikida case is applicable. The opinion in Hikida notes that the employer provided the surgery. The holding refers to medical treatment for which the employer is responsible. Employers do not provide and are not responsible for treatment that has been timely denied by UR unless the UR denial is overturned by IMR. Also, in Hikida, the WCAB didn’t deny the applicant the additional PD arising out of the failed surgery. It just carried over the apportionment from the underlying condition that necessitated the surgery which the Court of Appeal said was impermissible because there’s no apportionment of medical treatment.

There are probably very few unauthorized surgery cases and fewer still that result in increased PD from a surgery gone bad. For the most part, these cases are probably confined to situations where UR denies the surgery and the applicant chooses to have it performed under group insurance. Inpatient facilities won’t treat on a lien basis. Surgery centers, surgeons and anesthesiologists would be taking a big risk of nonpayment. As for out of network treatment, if the WCAB finds that the applicant didn’t have the right to treat outside of the MPN, the employer isn’t liable for the treatment or “for any consequences of the treatment obtained outside the network” which would appear to include increased PD.

Even if a QME or a treating physician said the failed surgery was reasonably necessary at the time it was performed, they would still have to explain how the surgery was compliant with the MTUS which might be hard to do if it wasn’t. One could argue that the injured worker is entitled to the increased PD in spite of the UR denial since he wouldn’t have had the surgery but for the injury. It’s questionable how far they’d get with that argument.
mytwocents
 
Posts: 330
Joined: Wed Dec 19, 2012 1:58 pm

Re: UR denial and pd (California)

Postby jpod on Mon Mar 04, 2019 1:02 pm

I wasn't saying Costco is applicable, I was distinguishing it from this post. You highlighted the distinction I was referring to that in Costco the treatment was not disallowed thru UR/IMR, yet not withstanding compliance with LC 4600 there was a bad result (the pain disorder) which flowed directly from treatment that was required under under 4600. Costco argued the bad result was not directly caused by the injury, but rather the treatment.

In the case discussed in this post the bad result can not be said to have flowed directly from treatment required under LC 4600, b/c UR non-certed the sx and an IMR appeal was not undertaken.
jpod
 
Posts: 771
Joined: Fri Mar 06, 2009 1:21 pm

Re: UR denial and pd (California)

Postby mytwocents on Mon Mar 04, 2019 1:18 pm

I agree.
mytwocents
 
Posts: 330
Joined: Wed Dec 19, 2012 1:58 pm

Previous

Return to Legal

Who is online

Users browsing this forum: No registered users and 1 guest