Sunday, March 2, 2014


Our posts on workers compensation in California have often stirred up hornets' nests, sometimes only to disclose honey-bees. Here's the latest ruckus:

1)  In our previous post we referred to WCAB's "en banc" decision re Jose Dubon v World Restoration and SCIF as a landmark event and even as a triumph for injured workers.

2) We said WCAB stated that "a UR decision is invalid if it is untimely or suffers from material procedural defects that undermine the integrity of the UR decision."

3) We also pointed out that the WCAB decision said that the UR decision would be invalid only if the defect or defects in its processing of a claim were "material" and that just "technical or immaterial" defects would not cut the mustard.

4) So here's one of the major objections we got from a knowledgeable doctor who does workers comp: "I fail to see what's so great for the injured worker ... nothing has changed ,,, the 'burden of proof' is still on the patient to challenge the UR, which is presumed correct, by  going though IMR/Maximus UR. This just says you're only allowed to challenge ... if they don't file their report (no matter how bogus it is) on  time. Big effin' deal."

5) Maybe  so, but here's the riposte: it has always been the case that the injured worker or his representative had to carry the burden of proof. Since the provider is getting the money and the injured worker is getting access to treatment, who else would be expected to carry the burden of proof? Following the money trail has never been a bad idea. What WCAB has now done undercuts wrongful UR especially by companies known to specialize in wrongful UR by getting UR doctors who aren't licensed in the states in which they provide review or whose specialties are so far removed from the clinical challenge at hand as to make them, or that ought to  make them, irrelevant and disqualifiable on that basis alone.
Here's how UR decisions can be successfully challenged:
(a) you object because you have reason to believe that the UR doctor did not get all the relevant information from the adjuster,
(b) you  object because while you believe the adjuster submitted your information the UR doctor didn't properly review it, and
 (c) for either or both of these reasons you  believe a material breach has occurred. Your problem as a doctor taking care of patients will be how to complain effectively. If the organizations to which you pay dues are not allowed to represent you in terms of denied claims either collectively or on an individual basis, you'll be dependent on the injured worker's lawyer or your own efforts.

Not only that: take notice that SCIF is part of the WCAB decision. To our knowledge, SCIF uses only California-licensed doctors for its own UR. That means that SCIF's UR doctors are subject to the medical board in California whereas non-California licensed doctors favored by some other companies need not worry about anybody's medical board (they're not licensed in California and the medical board of the state in which they're licensed doesn't have jurisdiction in California).

Given the changes introduced by the WCAB decision in "Dubon" the PTP has a better chance of getting a case denied by UR and out of the claws of Maximus and into the hands of WCAB which will allow injured workers' cases to be heard by judges. Given Maximus' record to date, this change is a decided improvement.  It is for these reasons that we believe the case is "landmark." We'll watch with keen interest how doctors use this opening. 

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