Tuesday, March 18, 2014


"OBVIOUS BAD FAITH" in workers comp re injured workers is revealed in this story about how an insurance company denied care without making any attempt to reach the PTP (primary treating physician) before issuing a decision. We are not stating the patient's name for obvious reasons. We're not stating the name of the insurance company because they all do it so there's no sense in just one taking today's hit. We're not naming the doctor because we don't have permission. But what we do have is full documentation which can eventually be made available. In the meantime, we'll make this story and details known where it may do some good.


A  request was made to prescribe hydrocodone, capsaicin, and lidoderm. The insurance company's Utilization Review (UR) doctor reviewed the request and called the prescribing doctor's office at 10 PM. The UR doctor reported later than no one was there to take the call so he left a message. The prescribing doctor asked later whether or not it was reasonable to make such a call at 10 PM and reported also that no message was left. In other words, the UR doc called at an unreasonable time and then faked or lied about having left a message.  


When the PTP became aware of  the denial, an appeal was filed.  The response by the UR doctor came by telephone at 4:34 AM! This second UR doctor said that a message was left because there was no one present to take the 4:34 AM phone call. Once again no message was left, not that calling PTPs at 4 AM should be considered acceptable practice.  

UTILIZATION REVIEW'S STANDARD OF PRACTICE is woefully short on both ethics and knowledgeable practice. In the case at hand the PTP is knowledgeable re the standards of care re managing pain. The UR doctor's response appeared knowledgeable from textbook information but was seriously flawed in its application to the now denied patient. The denial was rammed through without a good faith effort to confer with the PTP. Two UR doctors made phone calls at unreasonable hours and then claimed to have left messages. The PTP doubts the latter assertion. So does this author. Our experience is that UR is repeatedly conducted in bad faith and to the best of our belief with the knowledge and connivance of the insurance companies.

The recent passage of SB 863 allows Independent Medical Review (IMR) to support bad or bogus UR decisions and then deny the patient not only treatment but also his day in court.  Both UR and IMR are sties in the eye of medicine and need strict utilization control themselves. Better yet, both should be repealed.

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.