About California s Workers' Comp Reform

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1 The Truth About California s Workers' Comp Reform Denials and delays of treatment and medications have tremendously hurt those injured while on the job. A WHITE PAPER PRESENTED BY BermanMoreGonzalez A T T O R N E Y S A T L A W

2 In the blink of an eye, a serious In injury the blink sustained of an in eye, an a on-the-job serious injury accident sustained has the in an potential to change the direction on-the-job of your life. accident And while has the employers potential must to change purchase the direction workers compensation insurance of your that life. will And cover while medical employers expenses must for purchase these types workers of injuries, those injured while at work compensation often face insurance a drawn-out that battle will cover to get medical needed expenses care, medications and home modifications. for these types of injuries, those injured while at work often face a drawn-out battle to get needed care, medications and We will get into how the workers home comp modifications. system has changed following SB 863 that went into effect in January But let s first start with a story. We will get into how the workers comp system has changed following SB 863 that went into effect in January But let s first start with a story. CASE EXAMPLE Goodbye Versus Goodnight Makes A World Of A Difference NBC News recently shared the story of one grandfather who cannot live with his family, because an insurer refuses to make court-ordered modifications to his home. In 2011, a routine day at work took an awful turn for Nicolas Mercado, when the tanker he was driving flipped and crashed on an off-ramp. When he awoke in the hospital, he was given the tragic news: He was now a quadriplegic. Unable to move his arms or legs, he learned how to operate a specialized wheelchair and adjust to living in a care facility. Nicolas Mercado was rendered a quadriplegic in 2011 in a work-related accident. 2

3 CASE EXAMPLE But he wasn t the only one who suffered. Each day, his wife and family drove two hours round trip from their home to see him, and each day they were forced to leave their grandfather behind. His care providers agreed that he could move home with modifications to accommodate his wheelchair like enlarging doorways, adding a ramp and adding an additional bedroom and bathroom. A state agency, the California Insurance Guarantee Association, had taken over his case when his employer s insurer went bankrupt. The insurer denied the requests, but a workers compensation judge found the modifications reasonably required and ordered the company to pay for them. CIGA appealed the decision to the Workers Compensation Appeals Board (WCAB) in San Francisco, but lost. CIGA still refused to pay for the modifications. After waiting for three years, this grandfather still hopes to move back to his family home and say goodnight to his wife rather than goodbye each day. 1 In the interim, the family requested two ipods so they could Facetime on days when it was not possible for the wife to drive to the care facility. The answer from the insurance agency was again a denial. This is a great example of the barriers and drawn-out battles that workers face when obtaining the care they need. After all of the court hearings and victories, CIGA has finally agreed to build the addition and make the home safe for his return. 3

4 SERIOUS INJURIES Quadriplegia And Paraplegia Injuries The National Spinal Cord Injury Statistical Center estimates that approximately 12,000 people suffer severe spinal cord injuries each year. 2 Almost a third of all spinal cord injuries occur from a fall. If you work in construction, heating or air conditioning installation and repair, roofing or tree trimming, the risks from falling are real. Another 36 percent of these serious injuries occur in auto accidents. If you drive for your profession whether a big rig, delivery truck or cab an accident can change your life as it did for the grandfather. In very serious workplace accidents, surviving the injuries is any family s initial concern. The medical bills quickly mount, and could include physical and occupational therapy as well as a specialized wheelchair. In addition, long-term costs are common, such as those to pay for an assisted living residential facility or a personal attendant if you are able to modify your home.! Medical Bills Add Up 12,000 spinal cord injuries each year Most Common Causes falls auto accidents assisted living physical therapy specialized wheelchair personal attendant SPINAL CORD INJURY FAQS 4

5 THE BASICS How Do You Obtain Treatment Within The Workers Comp System? ACRONYM GUIDE State law classifies any injury that results in practically total paralysis, for instance, paraplegia or quadriplegia, a permanent disability. 3 But you must see a medical provider within the insurer s network. Each insurer sets up its own list of providers. Talking to a workers compensation attorney right away can be a big advantage. An attorney who routinely handles spinal cord injury cases can help you get treatment from the best available doctor based on your injury. WCAB RFA UR UR denial IMR Workers Compensation Appeals Board that hears appeals Request for authorization of treatment Utilization review allows an insurer to challenge whether a treatment is medically necessary A denial of treatments by the workers compensation insurer Independent medical review is the process to seek review of a denial Seeing the wrong doctor can cause severe harm and delay in treatment. WCJ Workers compensation judge who initially decides a case Once the medical provider determines a course of treatment or prescribes medication, the doctor s office sends a request for authorization (RFA) form to the insurance company. This is just the beginning of the acronyms and legal terminology. Learning the workers compensation system acronyms is almost like learning a new language. ACOEM Maximus American College of Occupational and Environmental Medicine is a group that issues treatment standards A company that facilitates review of denials 5

6 ? The utilization review (UR) process allows the insurance company to send the RFA to another doctor of its choosing in the same field. That doctor reviews the medical records to determine if the treating doctor was right or wrong. In practice however, insurance companies may use a doctor in a completely different specialty or a doctor in another state not licensed to provide care in California to conduct the utilization review. CASE EXAMPLE Here is a scenario that demonstrates how this can work. An injured worker trying to cope with quadriplegia admits to thoughts of suicide and tries to kill himself. A psychiatrist prescribes Abilify to help. The workers comp carrier sends the RFA to a family practice physician without a complete set of medical records. That doctor says it is not necessary, and the insurer sends a UR denial. Employers thus can use the UR process to deny everything. Working with a workers comp attorney and your doctor to ensure that the initial request for authorization is complete may eliminate the need to go down the Orwellian appeals process. Because of needless UR denials, many doctors no longer want to treat patients in the workers comp system. Reduced payments for treatment also make it less worthwhile for them to take workers comp cases. Some doctors have instead become UR reviewers, because each review pays $100 to $150 and generally only requires writing approved or denied. 6

7 THE PROCESS How Did The Workers Comp Reform Change The Appeals Process? In 2012, the California legislature changed the appeals process as part of a workers compensation reform bill SB 863. An injured worker now must request an independent medical review (IMR) to dispute medical necessity after a UR denial. This legislation was intended to change the process so that medical professionals determine the necessity of requested treatments. Maximus, an independent medical review organization, runs the IMR program for the state 1 2 THE APPEALS PROCESS Treating physician issues the RFA DENIED Insurer issues a UR denial of California. The new IMR process is a black box; it is impossible for you to find out who completed the review. The decision rarely explains the records reviewed or what the reviewer actually did. 3 Injured worker appeals to IMR How does this affect your case? You receive a UR denial for a home health aide and several medications. You appeal and submit a request for IMR. Then you wait and often this takes months. Maximus upholds the UR denial. Now where can you turn? The WCAB will only set aside Maximus decisions on very limited grounds. The new process has in effect tilted the power from judges to the insurance companies. In the case of a procedural mistake, you may be able to seek review by a workers compensation judge (WCJ) and the WCAB. In this landscape, you need an attorney to fight for you. Since the new system went into effect, about 80 percent of IMR appeals are denied. That means that the panel of treating physicians selected by the insurance company is wrong most of the time. 80% DENIED IMR APPEALS 7

8 CASE EXAMPLE When Can You Get A Judge To Review Your Case? Several cases from the WCAB have The injured worker used the insurer s since reviewed when an injured worker internal appeal process. He received can seek court review of a UR denial a second UR denial from another from a WCJ and the WCAB. doctor that was significantly identical to the first denial. In August 2013, the The facts of the Dubon v. World injured worker applied for IMR and Restoration, Inc., 4 case were simple: filed a declaration of readiness (DOR) A worker suffered a spinal cord injury. to proceed for an expedited hearing After three years of treatment, he with a WCJ arguing the UR denial was continued to have persistent pain, defective, because the insurer had not numbness and tingling. His primary followed the law. physician sent him to an orthopedic surgeon for a consult. The specialist In late September 2013, the WCJ found recommended spinal surgery in that there were procedural defects July with the UR denial, including the failure to review all medical records, The workers compensation procedure which is critical and required by the now gets complicated, and his case American College of Occupational drags on through October and Environmental Medicine (ACOEM) to determine the necessity of a Here is how the insurer kept the treatment. Even with the defects, the injured man from receiving treatment: WCJ noted that the court could not A UR doctor reviewed only 18 pages award the recommended surgery. of his medical records and found The need for surgery needed to be the spinal surgery was not medically addressed through the IMR process. necessary. The insurer sent a UR denial. 8

9 COURTS MAY REVIEW MEDICAL NECESSITY WHEN A UR DENIAL IS INVALID CASE EXAMPLE The injured worker appealed to the WCAB. The board issued a decision on February 27, This decision was positive for those trying to get treatment through the workers comp system and allowed the court to reach the issue of medical necessity. WCAB JUDGEMENT The WCAB could resolve procedural issues timeliness and compliance with California law (e.g., failure to send complete Untimely or procedurally defective UR decisions were invalid. The WCAB would decide medical necessity rather than IMR when the UR is invalid. medical records). The insurer did not like the decision and requested that the full workers compensation appeals board reconsider. For somewhat unclear reasons, it agreed with the request and then took the opportunity to considerably limit the holding with Dubon II. 5 MAYBE NOT? WCAB LIMITS THE RIGHT TO REVIEW In October 2014, the court limited its prior decision to hold that UR decisions are only invalid if untimely. The WCAB could only resolve issues related to timeliness and all others must be resolved through IMR. One interesting side note to the case was brought up by a dissenting commissioner. The injured worker s back condition worsened while he was waiting on the appeal. In November 2013, the insurer approved a second request for surgery and post-surgical services. The commissioner argued the issue was moot, and it was While frustratingly complex, this case demonstrates that persistence can pay off in the battle against the workers comp insurer. not appropriate to reach the merits. 9

10 TAKE A STAND Standing Up To The Workers Comp Insurance Carrier The UR decision might be flat-out wrong and completed with incomplete medical records by an out-of-state physician outside of a practice area. Then IMR approval of the UR decision could also be wrong, but it does not matter under the law. One physician analogized the situation to the book "1984" in regard to medical-legal jurisprudence. 6 Frustration, delays and denials are enough to get many people to give up, and insurers know that when they place additional hurdles that must be cleared to get benefits. You probably did not realize what a fight you would have on your hands to get necessary treatment to recover from an injury you suffered while at work. If you or a loved one is severely injured while at work, you immediately need to contact an attorney. As the system slants further in favor of large insurers trying to control medical costs by denying most requests for treatment, you need an advocate in your corner to fight the system and stand beside you. CLIENT LOGO 10

11 SOURCES 1 NBC News Los Angeles, Wheelchair bound man says he is trapped in SHARE care home, Amy Corral and Randy Mac, January 29, Spinal Cord Injury Facts and Figures At a Glance, Feb VISIT OUR SITE 3 Cal. Lab. Code 4662 (West) 4 Dubon, 79 Cal. Comp. Cases 313 (Cal. W.C.A.B. Feb. 27, 2014) Dubon, 79 Cal. Comp. Cases 313 (Cal. W.C.A.B. Feb. 27, 2014) CALL OUR FIRM Dubon, 79 Cal. Comp. Cases 1298 (Cal. W.C.A.B. Oct. 6, 2014) 6 Workcompcentral.com, Utilization review and independent medical review, Dr. Robert Weinmann, Dec. 30, 2014 The content of this paper is provided for informational purposes only and does not constitute legal advice Berman More Gonzalez, Attorneys at Law. All rights reserved. Design and editorial services by FindLaw, part of Thomson Reuters.

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