The Difficulty of Obtaining Quality Medical Treatment Under Workers Compensation in the San Francisco Bay Area (and beyond).

In theory, one of the principle benefits of the workers compensation system is the ability to obtain medical treatment to cure and relieve the effects of the industrial injury. In the San Francisco Bay area, legislation passed in 2004 under SB899 made access to quality care arguably more difficult. Gone are the days that injured workers can freely choose any doctor who is willing to treat under CA workers compensation. Now, employers and carriers are allowed to set up Medical Provider Networks (MPN), and injured workers have to choose a doctor within the MPN. By design, choice is limited. While not all MPN’s are devoid of quality patient oriented doctors, we have found some MPN to be seriously lacking in many ways. One critical problem is that some MPN’s are simply impossible to access, with user ID’s and Password codes standing in the way of even accessing the MPN. Assuming that one is able to access the MPN, we find many of the MPN doctors listed, are not actually taking workers compensation cases, or have dropped out of the MPN, or have passed away. This distorts the number of legitimate doctors that injured workers have to choose from within that MPN. Legislation going into effect this year (2013) under SB863, hopefully will cure some of the defects and difficulties that plague some MPN’s, by forcing employers and insurance companies to be more accountable for their MPN, and access to the MPN. It appears there will now be some scrutiny and oversight of the MPN by the administrative director, however, if the MPN’s pass scrutiny, it remains to be seen what if anything that the WCAB can do to allow an injured worker on a case by case basis to treat outside of the MPN, through challenges of the validity of the MPN.
RECOMMENDATION: Pre Designate in writing a doctor willing to treat under workers compensation. Do this before you file a worker’s compensation claim.

Ok, assuming you can access an MPN, and find a doctor who is not so embedded with the insurance company or employer, that they are actually willing to treat for your injuries and devise a treatment plan, now it’s off to fighting the insurance company for authorization of that treatment. Utilization Review (UR) is a process whereby, the insurance carrier or employer hires by pre established contract, a company that essentially reviews the treatment recommendation (or authorization request) by your Primary Treating Physician (PTP). The entity reviewing your record will not meet with you. They will only review the recommendation of the PTP, and consider the request against a backdrop of various established protocols or guidelines for establishing whether that treatment is medically necessary. Utilization Review in theory makes some sense, in that it purports to put a doctor (as opposed to an adjuster), as the agent who will make a decision about medical necessity. A medical doctor has more expertise to determine for example, whether carpal tunnel release is appropriate under the circumstances, then an adjuster would. However, the system is not perfect, there are abuses and improper denials. There are many standards by which UR must be conducted appropriately. For example, there is a very short and specific time frame from the authorization request by the PTP, to UR review. If it is not done within this legislated time frame, then legally the UR (denial) is invalid. Also, the UR review has to be conducted by a physician, (and under SB 863 a physician in CA). I have often seen UR reviews conducted by nurses or other non-qualified practitioners. This would render the UR (denial) invalid. Finally, many UR denials are for lack of information. It is the adjuster who is responsible ultimately for forwarding the UR company the pertinent medical file.
REMEDY FOR UR DENIAL: Sometimes a good treating physician will appeal the UR denial, and this will result in approval. Sometimes it is possible just to appeal the UR denial at the WCAB, if the UR Review was legally defective. Otherwise, the case moves to medical-legal evaluation to address the treatment denial. However, this will no longer be a valid remedy for cases with a date of injury after 1/1/13 or for all cases after 7/1/13.

Under recently passed legislation SB863, the procedure by which a UR denial is now challenged, will no longer reside with a medical legal evaluation (Panel Qualified Medical Evaluator or Agreed Medical Evaluator) or for that matter an administrative judge. Now, starting in full force after 7/1/13, the injured worker has to request an Independent Medical Review (IMR) from the Administrative Director (under the Governors office). Once an IMR doctor is selected randomly by the Administrative Director, then the adjuster forwards the file to the doctor, or through the contracting agents of the doctor. It is important to note that the injured worker does not meet with the IMR doctor. The IMR doctor is completely anonymous, as intended by the legislators. It will be difficult to controvert an adverse opinion of the IMR. It remains to be seen how this will be accomplished. It also remains to be seen whether the whole IMR review process will stand constitution scrutiny, on the grounds that there is limited judicial oversight of this process. It appears that the Administrative Director has relieved the WCAB (i.e., the courts) of the burden of having to conduct trials over disputed medical treatment issues, and has usurped the role of the court in overseeing this process. I personally will be interested to see how the IMR procedure is implemented, and whether it is truly “independent.”
REMEDY: This is a new challenge and will have to be addressed on a case by case basis.

If you are injured worker and you have private insurance, you could theoretically elect not to treat within workers compensation. But this means foregoing a claim. This could be perilous. A consultation with a knowledgeable attorney to discuss these issues is clearly in your best interest.