IMR in 2016

When an employee is injured on the job, he or she will need to get medical treatment to proceed with a workers’ compensation claim. The physician will make an assessment of the injury and decide what type of course of treatment will be best to treat and hopefully cure the injured employee. In some situations, an employer can request an Independent Medical Review of the physician’s diagnosis and treatment plan. When a claim is made for workers’ compensation, the claim must go through a “utilization review” process in order to confirm the treatment is medically necessary before the claim is paid out. If the claim is denied, the employee may request an IMR. If an employer believes the claim should not have been approved, the employer may request an IMR. The purpose of instituting the IMR system was done with an eye toward reducing workers’ compensation disputes and speeding settlement, in order to help ease the congestion in the court. A recent analysis done of IMR volume shows that the process is perhaps not meeting its intended purpose.

The California Workers’ Compensation Institute conducted an analysis of almost half a million IMR decision letters from 2014, 2015, and 2016. These letters were from applications submitted to the state after a utilization review physician’s medical service was modified or denied. In 2016, IMR was at record high levels, with 10,477 more cases in 2016 than in 2015. The IMR analysis showed that in over 90% of cases, the IMR upheld the decision to modify or deny a requested medical service. The types of services did not change much, with prescription drug requests comprising over half of all IMRs, 28.5% of which were for opioids. The rate at which the IMRs upheld the decision made by the utilization review varied from 78.9% for evaluation services to 93.6% for acupuncture. The analysis also found that IMR requests varied widely by geographic region, with Los Angeles County and the Bay area representing a disproportionately large amount of IMR requests vis a vis their percentage of involvement in workers’ compensation medical services across the state. Similarly, areas with low population typically had a disproportionately small amount of IMRs, as did Orange County and San Diego.

If you own your own business, you need an experienced attorney to help you navigate the system. Call us today at (714) 516-8188. I can help you understand your business’s obligations and the claims process.

Communication versus Information – Maxham vs. Department of Corrections

 

In an overwhelming majority of court cases, the parties settle before ever having to see the inside of a court room. The field of workers’ compensation is no exception. Attorneys for both sides are typically experienced and are skilled in obtaining reasonable settlement agreements. There is a lot of paperwork and material exchanged by the attorneys in an effort to get to a settlement or prepare for trial. In some cases, the parties may agree to use an “Agreed Medical Evaluator” in order to help get to a proper settlement. The AME will examine and evaluate the injured worker and determine the level of disability or impairment. In preparation for this evaluation, the attorneys may also send certain letters to the AME. California Labor Code 4062.3 contains rules about what can and cannot be sent to the AME before the evaluation, including medical records from current and previous treating physicians. The attorney may also provide a letter “outlining the medical determination of the primary treating physician,” and a copy of that letter must also be served on the opposing party at least twenty days before the evaluation. Subsection (d) states that if the opposing party objects within ten days to any non-medical records or “information” that is proposed to be sent to the AME, the information shall not be sent unless a judge approves it. An attorney may communicate with the AME without the approval of the other attorney for purposes such as furnishing records and reports or other “nonsubstantive matters.” The difference between “communication” and “information” is therefore crucial, as communication without the “go ahead” from the opposing side is permissible, whereas passing information is not.

In Maxham v. California Department of Corrections and Rehabilitation, the WCAB was faced with the task of clarifying the difference between communication and information. In that case, the applicant’s attorney provided the employer’s attorney with a copy of the proposed “communication” to the AME, which included factual assertions, citation to case law, and summaries of legal principles. The defendant’s attorney timely objected to the letter and asked for portions to be redacted. The attorney for the employee sent the unredacted letter. The WCAB determined that “information” in these cases constitutes records prepared or maintained by a physician and/or medical and nonmedical relevant records. A communication can become information if it contains, references, or encloses medical or non-medical records that are otherwise “information.”

If you have questions about workers’ compensation, call us today at (714) 516-8188. We will discuss your business and what you can do to make sure you are facing workers’ compensation issues head on.

Timeliness of IMR

When an employee sustains a work-related injury, a complicated set of procedures is set into motion. An employee must receive treatment, an employer must complete paperwork, take witness statements, and submit a claim to its workers’ compensation insurance provider. While an employee receives medical treatment, his or her expenses for medical appointments, continuing treatment, and prescription medication will be submitted to the workers’ compensation insurance company. The claim will then go through a process called “utilization review,” wherein the insurance company will decide if the course of treatment is medically necessary. If the insurance company decides that the treatment is not necessary, it may modify or even outright deny the request for treatment. In such a case, the employee may then request an Independent Medical Review, or “IMR.”  During an IMR, the employee’s medical file is submitted to an independent medical professional who will then review the file and make a determination whether the utilization review made the right decision as to whether the treatment should be modified or denied.

California Labor Code 4610.6 provides several different time requirements for IMRs. Subdivision (d) provides that for any medical dispute not involving the drug formulary, the IMR must be conducted within thirty days of receipt of the request for review and the supporting documentation. A recent case styled Baker v. Workers’ Compensation Appeals Board, Sierra Pacific Fleet Services, et al. took on the issue of timeliness of IMRs and the impact that the failure to conduct the IMR in accordance with the statute’s timelines could have. In that case, the worker was injured after falling over some tools at work. He injured his knee, neck, and shoulder. His physician prescribed certain medication, but a utilization review recommended they be denied. On March 19, 2014, the worker requested an IMR. The administrative director failed to uphold the denial until July 21, 2014. The worker appealed this determination and the workers’ compensation judge ordered a new IMR. The new IMR again upheld the utilization review. The worker again appealed. The WCJ determined that the IMR determination was untimely under 4610.6, but that did not mean that the IMR was de facto invalid. The higher court agreed, and held that “an untimely IMR determination is valid and binding on the parties.”

The workers’ compensation process can be complicated. If you have a question about your case and the IMR process contact me today at (714) 516-8188.

Discovery and Workers’ Compensation

There are many steps in any type of legal case, and workers’ compensation cases are no exception.  To those not familiar with the process, it may seem that there is an unending amount of paperwork done in workers’ compensation cases, but the paperwork is an important and essential part of making sure that your attorney has the proper tools to proceed.  A crucial part of building a case and a defense to a workers’ compensation case is discovery.  Discovery is a process during which each side can ask any question reasonably designed to lead to evidence that can be admissible at trial.  These questions may be asked in writing or in person.

In workers’ compensation cases, there are a variety of discovery tools at the disposal of your attorney.  Requests for production are a type of discovery allowing your attorney to obtain copies of documents that the employee has or has control over.  For example, your attorney can obtain copies of medical records, even if those medical records are from before the work-related injury occurred.  This can help your attorney determine if there is reason to believe there may be a pre-existing condition that may require apportionment or additional review by your own medical expert.

Depositions are the type of in-person discovery most commonly utilized.  During a deposition, your attorney will be able to ask the employee questions while sitting with him or her, face-to-face.  Depositions are given under oath, just as in a court room, and a court reporter will record everything that takes place.  Your attorney can use depositions to obtain additional information and ask follow up questions from what was disclosed in the written discovery.  Depositions can also be used to force the employee to explain inconsistencies in prior statements and can often be an essential tool in uncovering fraud.

Discovery is an essential part of the workers’ compensation process.  If you have questions about discovery in your business’ workers’ compensation case, contact me today at (714) 516-8188 to discuss developing a strategy for your business’ defense.

Workers’ Compensation and Statutes of Limitation

When an employee sustains a work-related injury, there are many steps and a lot of paperwork that needs to be completed as quickly as possible.  The beginning of a workers’ compensation case is mostly punctuated with trying to make sure an employee gets lined up with the proper medical professionals as soon as possible, as well as efforts by the employer to determine just how the injury occurred.  To make sure that efforts are made promptly to seek appropriate medical care and to allow a proper investigation to be conducted, California has enacted a series of statutes of limitations which provide for strict timelines when particular claims and tasks must be completed.

A statute of limitations is a law that states a particular amount of time in which a plaintiff has to bring legal action.  In the context of workers’ compensation, this means the deadline by which an employee who sustained a work-related injury must notify his or her employer and must file a claim.  California Labor Code 5405 provides that an injured employee has one year from the date of the injury to file for workers’ compensation benefits.  Although this sounds simple, there are important complications.  An employee is required to provide notice to his or her employer within thirty days of the injury, or in the case of a cumulative injury, the date when the employee became aware of the disability or should have been aware of the disability when exercising “reasonable due diligence.”  Similarly, claims for serious and willful misconduct or claims for discrimination under Labor Code section 132(a) must also be brought within one year.  In workers’ compensation cases involving the death of an employee, the employee’s family must file for benefits within one year of the employee’s death, but no longer than 240 weeks from the date of the injury.  It is important to note that although workers’ compensation claims may be barred after a year, an employee may still be able to file a personal injury claim against a third party for up to two years.

Employers should also be aware that employees have gotten permission to continue on in workers’ compensation cases filed outside the statute of limitations period in some situations.  Several notable cases provide that where the employer failed to provide particular written notice of rights to employees, the statute of limitations may be tolled.

Statutes of limitations may seem straightforward at first glance, but there are many exceptions and nuances.  If one of your employees has sustained a work-related injury, contact us today at (714) 516-8188 to discuss crucial deadlines you need to know.

The Gregory Formula

Workers’ compensation benefits are designed to help an employee who has sustained a work-related injury by paying for related medical expenses.  The injured employee may receive a large variety of treatments including, but not limited to, physical therapy, prescription medication, chiropractic care, psychological services, or the use of durable medical equipment.  An employer may very well be on the hook for the costs of these services.  When providing medical care to an injured employee, medical providers and group health insurance providers may file liens against the workers’ compensation recovery in order to ensure reimbursement for care provided to the employee.  Ultimately an employer and an employee may agree to settle the workers’ compensation claim by a compromise and release agreement.  In a case styled Kaiser Foundation Hosp. v. Workers’ Comp. App. Bd., the WCAB addressed the issue of what happens when the medical providers who have filed liens do not agree with the amount settled on in the compromise and release agreement.

In that case, four separate cases were consolidated for consideration by the WCAB.  The issue revolved around how much a lien claimant should recover in a denied case.  It was proposed that the Lien Claimant should be eligible for the same ratio of recovery that the injured worker accepted as settlement of the case.  Where the lien claimant does not agree with the amount of the settlement compromise, the workers’ compensation referee shall “determine the potential recovery and reduce the amount of the lien in the ratio of the applicant’s recovery to the potential recovery in full satisfaction of its lien claim.”  The court stated that the phrase “potential recovery” means “the amount of recovery which is reasonably probable” in a contested trial, examining the entire record.  The proposed settlement should include the formula for determining the reduction of the lien, called “the Gregory Formula,” and the computation of the potential recovery needs to include a variety of figures, including the percentage of disability, medical expenses, and the duration of future medical expenses.  In the simplest terms the proposed recovery is a fraction, where the actual settlement amount is the top number (numerator), and the total reasonable case value if Worker won at Trial is the bottom number (denominator).  Basically, if the Injured Worker accepted 25% of the potential case value as settlement, that number could be attributed to the lien claimants.  These need to be set forth in specific detail for the judge.  These figures have to be disclosed to the lien holder to allow it to examine the basis on which the settlement would reduce the award against it.  If the Lien Claimant objects to the formula after notice, the WCAB may withhold that lien from resolution, and give the Lien Claimant an opportunity to independently prove up an injury.  The lien claimant then runs the risk of zero recovery if they fail to independently prove an injury.

If you have a question about how the Gregory Formula could help reduce the financial liability of your business during a workers’ compensation case, contact me today at (714) 516-8188.  We can discuss your business and your options.

How and When Workers’ Compensation Benefits Are Paid

The workers’ compensation system is designed to help employees when they get injured at work.  Employees will be entitled to receive a variety of different type of payments, including temporary disability, permanent disability, and medical costs.  Understanding when and how these payments are made can be immensely helpful to getting a better grasp to how the workers’ compensation system works.

Temporary disability is either temporary total disability, i.e. when the employee is not able to work at all during recovery, or temporary partial disability, meaning the employee can work, but not work a full schedule while recovering.  Temporary disability payments are two thirds of the gross wages the employee receives, although there is a cap set by state law.  The temporary disability payments begin after the employee’s medical provider determines that the employee is unable to work for at least three days.  Payments are made directly to the employee, and are made every two weeks.

Permanent disability means that the employee has a lasting disability that permanently reduces the employee’s earning capacity.  The employee may be entitled to permanent disability payments even if he or she is able to return to work.  After a doctor determines that an employee’s injury has become “permanent and stationary,” meaning the employee’s injury has reached the maximum level of recovery, the amount of permanent disability must be determined according to very particular formulas.  The percentage of permanent disability will be converted to a specific dollar amount, based on average weekly rages at the time of the injury.  The permanent disability payments are made directly to the employee, and must be paid within fourteen days after temporary disability payments end.

Medical payments are typically handled directly between the health care provider and the workers’ compensation insurance company.  The medical provider will bill the workers’ compensation insurance company directly for the cost of medical services and devices.  If the worker’s claim is accepted, the medical provider is not permitted to bill the injured worker for the balance of services rendered if the workers’ compensation insurance company does not provide as much payment as they usually receive.  The employee will only receive copies of the bills from the medical provider if he or she specifically requests to receive them.

The timing and method of workers’ compensation payments can seem overwhelming.  Call us today at (714) 516-8188 and let us help you understand the system.

Developing a Return-to-Work Policy

Workers’ compensation is designed to help get a worker who sustains a work-related injury recompense for their lost wages and medical expenses.  The worker wants to get back up on his or her feet and get back to work as soon as medically possible, in most cases.  Employers should be mindful of this and are obligated to help their employees by making certain accommodations for the injured worker.  This benefits both parties, as the employee can get back to work and the employer no longer has to worry about certain job duties needing to be covered by other workers.  To this end, employers need to work to develop a return-to-work policy that helps employees return quickly and safely to work.

An employer should take proactive steps to help an employee return to work.  This includes reaching out to the employee and his or her medical providers to determine the nature and the extent of the injury.  Employees and employers should keep an open dialogue about what is medically appropriate for the employee in terms of job duties and needed accommodations, and come to an agreement about what any type of modified duties will include.  This will necessarily include making sure that the medical providers agree with the restrictions and abilities of the employee.  An employer should research and evaluate the possible restricted work duties that are available in the business and make an offer of modified employment accordingly.  In the optimal situation, the employee will be able to remain in his or her original position with some accommodations that take the injury into account, but it may be necessary to assign him or her to a different position during the healing process.  After the employee starts on the new position, the accommodations should be monitored and modified as necessary.

Developing a plan to implement this return-to-work policy should be a group effort.  There may be several different people involved in this process, and an employer should keep in mind what other employees would be best suited to help with each step.  For example, the floor supervisor would be an excellent resource to ask about reasonable accommodations that are available, but may not be best suited to ask to retrieve paperwork from medical professionals.  Each step should be thoughtfully mapped with each employee knowing precise roles.  The employer should put particular emphasis on getting all paperwork done promptly and with a high degree of detail.

Implementing a return-to-work policy is an essential step for businesses and should be done with mindfulness.  Contact us today at (714) 516-8188 to talk about your policies and your business.

Independent Medical Reviews

Following an incident at work wherein an employee sustains a work-related injury, that employee may need to seek medical treatment.  A workers’ compensation claim is almost sure to follow shortly thereafter.  A worker may be entitled to have the costs of his her or medical appointments and treatment covered by the employer or the employer’s insurance under the workers’ compensation system.  However, in some cases, there may be a dispute between the employee and the employer about whether a particular injury is of such a nature as to be covered under the workers’ compensation claim.  An Independent Medical Review (IMR) is one way that these disputes may be resolved.

Once an employee sustains a work-related injury and gets involved in the workers’ compensation system, a request for a particular course of medical treatment must pass through a “utilization review” procedure.  This review process is to make sure that any treatment prescribed by the treating physician is actually medically necessary to treat the work-related injury.  In some cases, the utilization review board may modify or deny the treatment recommended by the doctor.  If this happens, the injured employee may request that decision be reviewed through the IMR process.

Upon receipt of denial by the utilization review board, an employee may request an IMR by filling out and faxing in specific forms that will be provided to the employee.  The state will then decide within thirty days if an IMR is appropriate in the particular case.  If it is decided that an IMR is appropriate, a physician will be assigned to the employee’s case.  Note that this is a doctor chosen by the state, and not by either the employee or the employer.  The employee, employer, and insurance company will have the chance to send supporting documentation to the independent physician.  The independent doctor will review all of this documentation and then make a determination as to whether the treatment prescribed by the employee’s own physician is actually necessary to treat the work-related injury.  The independent doctor does not actually examine the employee at all.  It is all done through examination of medical records and documentation.  If the independent doctor does decide that the treatment is necessary, then the treatment must be then authorized by the insurance company within five days of receiving the IMR decision.  The overwhelming majority of IMR decisions uphold the determination initially made by utilization review.

If you have questions about your business and workers’ compensation, contact me today at (714) 516-8188. I am highly experienced in guiding my clients through this complicated area of law.

Workers’ Compensation Lien Process

After an employee sustains a work-related injury, there are a number of processes which must be set in motion. The injury must be properly documented, witness statements need to be taken and filed, notice needs to be sent to insurance companies, and a variety of other procedures. Many of these procedures, such as medical appointments, attorneys, and living expenses involve the exchange of funds on behalf of the injured worker or his or her family. In some cases, a lien may be filed against the worker’s compensation claim in order to obtain reimbursement for these expenses.
Not every type of expense associated with a workers’ compensation case is eligible to file a lien against a claim. The expenses eligible are: attorney fees, burial expenses, living expenses for the spouse of the injured employee and minor children, unemployment disability benefits paid while waiting on a determination of the work-related injury, unemployment benefits paid to the extent that the payments overlap the time period that an employee is entitled to temporary total disability, indemnification granted by the California Victims of Crime Program, and reasonable expenses incurred by or on behalf of the injured worker for medical treatment, unless those treatments are subject to a dispute involving an independent medical or bill review.
Medical treatment expenses are typically the most common liens filed against a workers’ compensation pay out. In order to file a lien, a filing fee of $150 must be paid, although there are certain types of claims that are exempt from the fee. Other types of liens, such as burial fees, attorney fees, spousal expenses and several others also are not required to pay a filing fee. If a filing fee is required for a lien and the fee is not paid, the lien will be considered invalid and it will be as if the lien was never filed. Liens must be filed electronically, using one of two methods, called E-Form or Jet File. All liens must be reviewed by and approved by the Workers’ Compensation Appeals Board. A lien is only payable once the WCAB has issued an order allowing payment of the expense.
Liens are an effective method to make sure that those associated with a workers’ compensation case receive compensation for services rendered, and also to ensure that a worker does not receive double payments from both the disability system and the workers’ compensation system. If you have a question about liens in workers’ compensation cases, contact me today at (714) 516-8188. We can discuss your business and the lien process

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