More and more what attorneys representing injured workers hear from their clients is that they can’t get the medical care they need. The reason is that the system in California is now designed with a bias against patients and their doctors. The current law was designed to cure a perceived problem of doctors and patients abusing the medical system. The perception, and sometimes the reality, was that doctors prescribed treatment that patients didn’t really need or that were not very effective, just to make more money and that the injured workers dragged out their disability to avoid going back to work. So now your doctor can only recommend treatment but the recommendations are reviewed by someone who never sees you and that reviewer gets to decide whether you can receive the recommended treatment. This review process is called “Utilization Review” or UR.
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How does Utilization Review work?
The reviewer is supposed to apply “evidence based” medical standards in deciding whether you need any particular treatment. In order to do that, the reviewer needs to know your diagnosis, what treatment you have had before, and whether that treatment has helped or not. If your doctor does not provide all the evidence to satisfy the rubric or checklist used by the reviewer, then the recommended treatment is denied. So the assumption from the beginning of the review is that you do not need whatever treatment your doctor recommends. Your doctor can overcome this presumption by proving that you do need the treatment. In order to prove you need the treatment your doctor has to know and understand the “Medical Treatment Utilization Schedule” or MTUS, which is part of the Labor Code.
They don’t teach the MTUS in any medical school that I know of. Doctors who don’t treat workers’ compensation patients don’t have any reason to learn about the MTUS. Doctors who have already proven themselves to be medical specialists are used to evaluating a patient and deciding what is the next indicate thing that needs to be done. They are not used to having to explain the patient’s entire history and why they think the patient has now arrived at the point where she needs a particular treatment. They just order the treatment. That doesn’t work in our system. Some doctors have made it a point to learn how to present the need for a treatment they commonly perform in a way that often gets approved, but there are a lot of different reviewers who have different educational levels and different approaches so even the best doctors will get denials for treatment he/she thinks are necessary for their patient.
Here is a question: When treatment is denied because the requesting doctor has not proven (in a brief report) to the satisfaction of the reviewing doctor that it was needed is that proof that it was not needed? My answer is “no.” To my mind that is a “clerical” decision, not a “medical” decision. This is an example of why I say that you and your doctor are “guilty until proven innocent.” The system starts at “No” and your doctor has to find the way to “Yes.”
Why won’t my doctor fight to get me the treatment?
Here is another part of the problem. Treating doctors cannot get paid for any treatment that has not been approved ahead of time (except for some emergency treatment). The doctor may request authorization for 12 physical therapy treatments and get authorization for 6. When those 6 are done there has to be a new Request for Authorization,” (RFA) which will have to explain what treatment was provided and how you did with the first 6 treatments and why you need 6 more. If it takes a week for the doctor’s office to get the request out and 2 weeks for the reviewer to respond, you lose the benefit of the first 6 treatments before you get the next 6. Obviously, applying a level of review to every medical decision delays your medical treatment. In the old days the doctors would often take a chance that she could prove later that you needed the treatment and go ahead and give it to you, hoping they would get paid later. Now the fact that it was not authorized ahead of time is “proof” enough that it was not necessary and the doctor won’t get paid.
Another fun part of the law for doctors is that they don’t get paid for reviewing your history and writing reports that explain in detail why you need a particular treatment. The more complicated your history and the longer you have been obtaining medical care, the more that has to be explained. More explanation by the doctor means more unpaid time he has to spend. Probably the most common reason for a Utilization Review denial is that the requesting doctor has not explained enough about why the treatment is needed. When this happens, the UR review usually states that the reviewer called the doctor’s office to find out the missing information, but did not get a response. Most doctors willing to treat workers’ compensation injuries do not set aside time to sit and wait for phone calls from reviewers. The doctors often complain that the calls come when they are seeing patients (or in the late evening or night) and when the doctor does call back the decision to deny has already been made.
All treatment is subject to a medical “fee schedule.” Reviewing records and writing a narrative report has been removed from the fee schedule to save money for the insurance companies. The effect is that many doctors are reluctant to take a patient who has a complicated history because they won’t be paid for reviewing and learning about that history and they won’t be able to request necessary treatment without a lengthy explanation for which they won’t be paid.
What is a Medical Provider Network?
Now I will discuss another problem that could have been the starting point of this discussion. The treating doctor we discussed already has, in almost all cases, been selected by you or your claims administrator from a list of doctors already approved by the insurance company. It is their own pre-selected doctor that is being second guessed and overruled. Most insurance companies and employers have what is called a “Medical Provider Network.” Your employer is supposed to tell you upon hiring you and again when you are injured how to access that particular list of doctors that are the doctors you are allowed to see, their MPN.
You may not be surprised to know that some doctors care a lot about their patients and others care more about their paychecks. The insurance companies like for doctors to know that the law allows the insurance company to kick a doctor off the list at any time for any reason. Doctors who ask for too much or who challenge the UR denials can be easily eliminated from a network (MPN). Doctors who report on injured body parts that were not mentioned in the very first report of the injury know they are at risk to be removed from the MPN and so lose a big source of referrals (money).
When you are injured at work your employer is supposed to see that you are set up with a doctor appointment within 3 days. After you have seen that doctor, if he/she says you need more treatment you are free to choose any other doctor within their MPN with whom to continue your care. You should have a letter or other document that tells you how to access a list on line or who to call to ask for the list or for recommendations within your area. When you were hired you also should have been given a chance to select a doctor to be your treating doctor in the event that you get injured at work.
What are all these letters I get?
The paperwork involved in all this is daunting. The notice about the MPN is many pages long and somewhere in there should be a link to a website that can help you search near your address for general doctors or specialists in your area, if you can find your way through the website. I have already described how complicated the paperwork from the doctor to Utilization Review can be, but the UR denials are really impressive pieces of baroque bureaucratic drivel. You could easily receive an 8 page letter which denies your doctor’s request for a pain relieving ointment, but it might take several minutes of reading to figure out whether the request was denied or not and then to decipher why it was denied. There will be lots of verbiage from the MTUS or some other standards about this treatment and it will look like it might be in your favor but somewhere in there will be something that your doctor did not quite get right in his request. One of the most important things we learn in law school is to read incredibly dense and boring documents and to make sense of them. Some of the UR reports are challenging for me even with all that training.
Along with the denial will be a form to request review of that UR denial by another anonymous doctor. This layer of review is called “Independent Medical Review” or IMR.
What is Independent Medical Review (IMR)?
A company called Maximus has a contract with the State of California to perform reviews of UR denials. They hire doctors to review the records and reports provided and decide whether or not to uphold the denial. Your particular situation and your doctor’s level of skill and reputation in the community are irrelevant except as they might be reflected in the paper records that the doctor allegedly reviews.
Why did I say allegedly reviews? Because it is fairly well-known that Maximus has nurses review the records and create a summary for the doctor who makes a small amount of money for reviewing the summary and signing off on the decision, which in my experience is about 98% to uphold the denial of treatment. The records that the doctor reviews are provided by the insurance adjuster. Your doctor can file the IMR request on your behalf but everything said before about not getting paid and incurring the risk of being dropped from the MPN still applies.
You or your attorney can also request IMR, but the only evidence that is relevant to that review is medical evidence. Neither you nor your attorney can create medical evidence. It must be created by a medical expert, meaning your doctor. My office will often file the request for IMR but we can almost always expect it to fail without some evidence that was not provided to the utilization review doctor. For that reason we also write to the doctor asking him to address the issues raised by the UR reviewer in their denial. But once again, the doctor cannot expect to be paid for providing more information and can risk being removed from the MPN if he/she is too helpful to you.
Does my attorney have my treatment records?
Your attorney may not have your treatment records. The law only requires doctors to provide their reports and records to the insurance adjuster or “claims administrator.” That administrator is supposed to send them to your attorney, but it is rare that they do. Some doctors will provide records to you or to your attorney. You should ask your doctor or his office administrator to provide all reports and records to your attorney. If they say they do not do that, then ask if they will provide them to you. If so, you can provide them to your attorney. It is also important for your attorney to know when a treatment has been requested. There are time limits that the insurance company has to meet in approving or denying a treatment request. If those time limits are not met and if your doctor has provided enough information to show why you need the treatment it is possible for your attorney to get a court order for the treatment to be provided.
Can’t we just go to court and make them give me my treatment?
You might think that your attorney can go to court and force the insurance company to give you the treatment you need but, unfortunately, that is not the case. The “reform” laws were designed to keep doctors and judges out of medical decisions. The theory was that doctors should make medical decisions and resolve medical disputes. The old system was that if there was a dispute both sides could get a medical opinion and a judge could decide which opinion was based on relevant facts and better reasoned. (Which is actually “weighing the evidence” not “making medical decisions.”) The new idea is that we have well-defined “evidence based” standards and an “independent” reviewer can decide whether the treatment request meets those standards. The reality is that we now start from the assumption that you do not need anything unless your doctor can jump through all the right hoops to prove that you do.
So far this sounds pretty negative. Any attorney who represents injured workers will tell you that it is. Most doctors who treat injured workers will also tell you that it is. The Administration and the insurance companies will tell you that it is a great success. There must be good side to it, right? Let’s try to find it.
Medical treatment that has documented results in reproducible situations is good medical treatment. The idea of establishing “evidence based standards” is to limit medical care to care that will do you some good. Refusing to pay for care that doesn’t do any good saves money that can be used for more effective care.
Example: Many people have an unreasonable expectation that an MRI is a picture of what is wrong with them that will allow a doctor to know exactly how to fix them. It is not that simple. We know that if you show a doctor an MRI of a person’s back, the doctor will not be able to tell you whether that person has back pain or not, because some people with normal seeming MRIs have back pain and some people without back pain have abnormalities on their MRIs. So, if you injure your back and have back pain it is usually not a good idea to run out and get an MRI right away. It might show an abnormality that you had all along (but did not know about) that has nothing to do with your back pain. Then rather than going through some physical therapy that would cure your situation, you are off and running toward a surgery you don’t really need. The cost of an MRI could cover quite a bit of physical therapy and the “cost” of unneeded surgery is more than just money. So evidence shows that it is better to only do an MRI if there are other symptoms (“red flags”) that tend to show you might need surgery.
Example: A doctor who went to medical school 20 years ago may have learned treatment modalities that were considered at the time to be effective but have since been shown to be less effective than some other treatment. You would want the most effective treatment as soon as possible and not the one that is already out of date.
In an ideal world, where all patients were identical, where there was evidence about every treatment for every condition, where all doctors knew all the evidence and all the best treatments, it would make perfect sense to put your data into the computer and let it decide what is the best treatment for you. Our problem is that each patient is unique, each injury is unique and each doctor’s experience is unique.
In another article I will attempt to discuss what you can do to improve your chances of obtaining good medical care within the California workers’ compensation system?
© Robert S. Havens 2018