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INDEPENDENT MEDICAL REVIEW (IMR)

SB 863 added a new layer of bureaucracy for resolving disputes over a medical treatment recommendation that utilization review (UR) modified, delayed or denied. For injuries on or after 1/1/13, and for all other injuries where a dispute arises on or after 7/1/13, if there is a UR modification, delay or denial, the injured worker can request IMR only and cannot put the current treatment issue to a QME or AME or a workers' compensation judge (with a few exceptions). See Labor Code §§4610.5 and 4610.6 and amended Labor Code §4604.

If the claim was accepted, the Primary Treating Physician prepares a Request for Authorization  and attaches it to "Doctor’s First Report of Occupational Injury or Illness, Form DLSR 5021, a Treating Physician’s Progress Report, DWC Form PR-2, or narrative report substantiating the requested treatment." The adjuster either approves the request or sends it to UR.

It the request is denied by the UR doctor, then the worker is to be sent an Application for Independent Medical Review which the adjuster has completed except for the consent. Within 30 days of receipt of the UR denial, delay or modification, the worker can sign the consent and submit the form to "DWC-IMR, c/o MAXIMUS Federal Services, Inc." (the current vendor). The worker must obtain and submit the documents supporting their request, or have their PTP do that. See How to Request IMR. How long will this process take? See What to Expect/Timeline, then consult a crystal ball.

The standard for IMR: The IMR doctor has 6 choices, "which shall be applied in the order listed, allowing reliance on a lower ranked standard only if every higher ranked standard is inapplicable to the employee’s medical condition," for determining medical necessity: LC §4610.5(c)(2) provides: “Medically necessary” and “medical necessity” mean medical treatment that is reasonably required to cure or relieve the injured employee of the effects of his or her injury and based on the following standards, which shall be applied in the order listed, allowing reliance on a lower ranked standard only if every higher ranked standard is inapplicable to the employee’s medical condition:

(A) The guidelines adopted by the administrative director pursuant to Labor Code §5307.27.
(B) Peer-reviewed scientific and medical evidence regarding the effectiveness of the disputed service.
(C) Nationally recognized professional standards.
(D) Expert opinion.
(E) Generally accepted standards of medical practice.
(F) Treatments that are likely to provide a benefit to a patient for conditions for which other treatments are
not clinically efficacious.

See the  Independent Medical Review FAQ. It claims that the new system created by SB 863 replaces an 8-step process that took 9-12 months with a "process similar to group health that takes approximately 40 (or fewer) days to arrive at a determination so that the appropriate treatment can be obtained." This assumes compliance by claims adjusters and Primary Treating Physicians with the new regulations, etc. Given the expense of this new process, will adjusters now authorize inexpensive procedures like physical therapy or a generic medicine, rather than pay upwards of $600 for IMR (plus the time involved in all this paperwork)? Will frustrated workers be more likely to contact attorneys after getting the UR denial and the confusing IMR Application? Only time will tell.

Labor Code §4610.5(i) does contain a warning to adjusters: "(i) An employer shall not engage in any conduct that has the effect of delaying the independent review process. Engaging in that conduct or failure of the plan to promptly comply with this section is a violation of this section and, in addition to any other fines, penalties, and other remedies available to the administrative director, the employer shall be subject to an administrative penalty in an amount determined pursuant to regulations to be adopted by the administrative director, not to exceed five thousand dollars ($5,000) for each day that proper notification to the employee is delayed. The administrative penalties shall be paid to the Workers’ Compensation Administration Revolving Fund." Keep these links handy: Complaint process and Audit Referral Form

SB 863 removed disputes about current treatment from the WCAB. The only remedy if the parties are aggrieved after IMR is to dispute the medical review determination on limited grounds (see LC §4610.6(h)) and, if the AD's determination is reversed by the WCAB, "the dispute shall be remanded to the administrative director to submit the dispute to independent medical review by a different independent review organization. In the event that a different independent medical review organization is not available after
remand, the administrative director shall submit the dispute to the original medical review organization for review by a different reviewer in the organization. In no event shall a workers’ compensation administrative law judge, the appeals board, or any higher court make a determination of medical necessity contrary to the determination of the independent medical review organization." See subsection (i). 

The IMR appeals process will be attacked on Constitutional grounds, since Art. 14, Sec. 4 provides: "all decisions of any such tribunal shall be subject to review by the appellate courts of this State." 

IMR under MPN: SB 899 created Labor Code §4616.4, which SB 863 did not change, allowing the administrative director to "contract with individual physicians...or an independent medical review organization to perform independent medical reviews" when an employee treating under a medical provider network continues to dispute "treatment or diagnostic service: "(b) If, after the third physician's opinion, the treatment or diagnostic service remains disputed, the injured employee may request independent medical review regarding the disputed treatment or diagnostic service still in dispute after the third physician's opinion in accordance with Section 4616.3. The standard to be utilized for independent medical review is identical to that contained in the medical treatment utilization schedule established in Section 5307.27 pursuant to this section."  So, this process is for when the injured worker disputes the doctor's recommendations, whereas the IMR established by SB 863 is for when the recommendations are modified, delayed or denied under utilization review.

Compare the new workers' compensation IMR to IMR under 28 CCR §1300.74.30 for health plan enrollees to challenge denials of care. 

Label Item Links Comments
Labor Code The new Independent Medical Review LC §§4610.5 & 4610.6  
IMR under medical provider network, when the injured worker disputes the doctors' recommendations after consulting 3 MPN doctors LC §4616.4  
Regulations/Rules

Independent Medical Review

Final Regs

Petition Appealing Independent Medical Review Determination of the Administrative Director: 8 CCR §10957.1

IMR Regs

Final regs

8 CCR §10957.1

 
Cases In the third en banc decision Jose Dubon v. World Restoration, Inc.; and State Compensation Insurance Fund (2014), the Board held: "1. A utilization review (UR) decision is invalid and not subject to independent medical review (IMR) only if it is untimely.
2. Legal issues regarding the timeliness of a UR decision must be resolved by the Workers’ Compensation Appeals Board (WCAB), not IMR.
3. All other disputes regarding a UR decision must be resolved by IMR.
4. If a UR decision is untimely, the determination of medical necessity may be made by the WCAB based on substantial medical evidence consistent with Labor Code section 4604.5."

The Board noted, "where a defendant’s UR decision is untimely, the injured employee is nevertheless entitled only to “reasonably required” medical treatment (§ 4600(a)) and it is the employee’s burden to establish his or her entitlement to any particular treatment (§§ 3202.5, 5705), including showing either that the treatment falls within the presumptively correct MTUS or that this presumption has been rebutted. (§ 4604.5; see also § 5307.27.) Moreover, to carry this burden, the employee must present substantial medical evidence."

Dubon v. World Restoration Note the need to appeal to IMR timely in the event the WCAB finds the UR denial timely.

The third Dubon decision was appealed to both the District Court and Supreme Court; both courts denied review.

Forms Request for Authorization

Application for Independent Medical Review
RFA

IMR form
 
Websites

IMR

IMR FAQ

IMR Search for Decisions

IMR

FAQ

Decisions

 
Practice Tips Make sure the UR decision being appealed from is attached to the IMR application. Maximus cannot process the IMR without it. 8 CCR §9792.10.1(b)(2): “A request for independent medical review must be communicated by the employee, the employee's representative, or the employee's attorney by mail, facsimile, or electronic transmission to the Administrative Director, or the Administrative Director's designee, within 30 days of service of the utilization review decision. The request must be made on the Application for Independent Medical Review, DWC Form IMR, and submitted with a copy of the written decision delaying, denying, or modifying the request for authorization of medical treatment.” 8 CCR §9792.10.1  
Articles
IMR, etc.: handout from DWC 20th annual educational conference 2/13

Maximus presentation 5/7/13

UR & IMR Regulations: handout from DWC 21st annual educational conference 2/14

How to File an Appeal of a Final Determination of an Independent Medical Review by Robert G. Rassp, Esq.

Independent Medical Review: A New Wave of Litigation in California by Robert G. Rassp, Esq.

IMR etc.

Maximus slideshow 5-7-13

UR & IMR Regs

How to Appeal IMR

 

A New Wave of Litigation

Magazine Articles
 
Roundtable    
Miscellaneous      

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