Applicants' Attorneys Pan DWC's Rosy View of Independent Medical Review

"the suggestion that the high volume of applications prevented Maximus from issuing timely decisions is not a valid excuse. 'How does that help an injured worker who needs treatment? And if he or she is not going to receive the treatment, will need to seek a different source in some cases'...the DWC seems to be unapologetic of this massive oversight, causing long delays in determining whether treatment denials were overturned or upheld."   Alan Gurvey

The California Division of Workers' Compensation says a report detailing independent medical review statistics from 2013 shows the program is on the right track in reducing delays and delivering timely medical care, but attorneys who represent injured workers say they're not seeing those improvements.

In some cases, IMR has forced their clients to endure additional waits for recommended treatments and services, they say.

According to the DWC report, its IMR contractor Maximus Federal Services closed 74% of the 73,282 applications it received last year, including 16,122 applications that were deemed ineligible for review. In 84% of the decisions, Maximus agreed with the utilization-review determination that a requested treatment was medically unnecessary.

The report also notes that after the program was opened to all dates of injury, the higher than expected volume of applications caused delays and prevented Maximus from issuing final determination letters within regulatory timeframes until October 2014. IMR was limited to 2013 injuries for the first six months of the year.

The report found the majority of physician reviewers were licensed in California and that a majority of IMR decisions cited the Medical Treatment Utilization Schedule in explaining why a disputed treatment was approved or denied. The DWC also points out that IMR costs charged to employers were reduced by 25% in April.

A statement from the division announcing the release of the report contained quotations from various administration officials referencing the successful implementation of IMR.

Labor Secretary David Lanier, who was an aide to Gov. Jerry Brown in 2012 and helped move SB 863 through the Legislature, said the bill sought to replace a broken medical-review process with one in which injured workers would receive timely medical care. Fewer delays and vastly less litigation are better for injured workers and employers, he said.

Department of Industrial Relations Director Christine Baker said the administration is "Seeing the tangible benefits of IMR and can expect further improvement in the process." And DWC Medical Director Dr. Rupali Das said the report shows the "great process made in resolving medical necessity disputes affecting injured workers."

The attorneys who represent those workers see things differently.

The California Applicants' Attorneys Association for two years has offered suggestions to improve IMR, held education seminars to try to improve medical professionals' understanding and compliance with IMR requirements and brought cases to the Workers' Compensation Appeals Board to clarify and interpret the law, according to its President Bernardo de la Torre.

"After all this effort, we believe the IMR program will never work well without a significant overhaul of utilization review, where the problems begin," he said in an email. "IMR has contributed to delays in returning to work and has not improved the delivery of medical treatment to California's injured workers."

Alan Gurvey, managing partner of Rowen, Gurvey & Win, agreed that the "whole problem starts" with utilization review and with insurance companies and third-party administrators second-guessing their own medical provider network doctors.

He also questioned whether IMR is appropriately equipped to deal with emergency situations in which there exists an imminent and serious threat to the health of the employee.

An injured worker can request an expedited decision in cases where the treating physician attests to the need for a quick decision to avoid complications for the injured worker. Expedited decisions are supposed to be issued within 72 hours, but the report shows that in February 2014 and again in April 2014, the average number of days for Maximus to issue an expedited decision was about 30. (It's not possible to discern from the line graph used in the report what the average turnaround time was for expedited cases in most months.)

While injured workers no longer have the option to challenge a utilization-review decision in court, Gurvey said in the past, going to court always yielded a decision faster than the IMR process currently takes.

"In many instances, under the old system, the parties worked together to ensure that the injured worker received proper treatment under these urgent conditions," he said. "Obviously, IMR is not equipped to deal with 'urgency or imminent' threats to one's health, and the parties now typically will not even discuss the injured worker's needs because they await the determination by IMR, even if it does take sometimes months."

Gurvey also said the suggestion that the high volume of applications prevented Maximus from issuing timely decisions is not a valid excuse.

"How does that help an injured worker who needs treatment? And if he or she is not going to receive the treatment, will need to seek a different source in some cases," he said. "The DWC seems to be unapologetic of this massive oversight, causing long delays in determining whether treatment denials were overturned or upheld."

He said the Workers' Compensation Appeals Board in the Bodam and in the second en banc decision in Dubon declared an untimely utilization-review decision to be invalid, and the same should apply to IMR. 

And he questioned why the DWC has not enforced penalties against Maximus for issuing the late decisions. The company's contract requires it to pay fees to the Workers' Compensation Administrative Revolving Fund if fewer than 95% of decisions in a three-month period are timely, as well as if fewer than 90% of decisions in any given month are issued on time.

Perhaps assessing penalties would be "admitting failure" with respect to the contract that the DWC intends to renew at the end of the year, Gurvey suggested.

The new contract for Maximus, which would run from Jan. 1, 2015, through the end of 2018 is currently pending review with the Department of General Services, DWC spokesman Peter Melton said in an email.

Melton also said that just because the agency has not assessed any penalties to day does not mean it won't in the future.

"Our primary focus has been to implement the program, ensure that medically appropriate IMR decisions are issued, and assist in making the process as timely and efficient as possible," he said in an email. "We were able to negotiate reduced IMR fees due to the unanticipated large volume of IMR applications. We have not ruled out pursuing penalties against Maximus."

Published on December 19, 2014 by WorkCompCentral, authored by Greg Jones