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The Editor Rants on the UR-IMR Dilemma: Are We as Smart as a Dog?
By Marjory Harris, Esq.

   

The editor revisits the broken system created by reform legislation and bureaucratic regulations aimed at micromanaging the medical delivery system and asks if we are as smart as a dog?

   

My first Internet stop on Mondays through Fridays is David DePaolo's blog. He wrote one recently on UR and IMR entitled “Point At The Moon” which ended with a Chinese proverb: “The difference between a human and a dog is that, when you point at the moon, the dog looks at your finger.”

I tested this with my own dog, who sits next to my desk when I'm working in my office. Much as I tried, I could not get my beloved Tashi to take her eyes off my pointed finger. Having empiracally proved the proverb to be true, I then researched the proverb online, and came upon some variations of the proverb: “When the sage points at the moon, the fool looks at the finger.”

I always considered Tashi very smart. After all, she is a poodle, one of the smartest breeds. But smart as she is, she cannot read and, if she could, she would not be able to figure out some of the post-SB 863 regulations foisted on workers' compensation practitioners by the sages at the DWC.

 

I always considered Tashi very smart. After all, she is a poodle, one of the smartest breeds. But smart as she is, she cannot read and, if she could, she would not be able to figure out some of the post-SB 863 regulations foisted on workers' compensation practitioners by the sages at the DWC.

But lets get back to workers' compensation. We who practice workers' compensation law find it easier to look at the finger, rather than where it is pointing. We point to our rhetoric that we are helping our clients and doing what is best for them, but we need to ask if we are not doing what seems best for us?

Fiduciary duty requires that we put our clients' economic and other interests before our own. We must also respect their wishes. As the Supreme Court noted in Davis v. State Bar (1983) 33 Cal. 3d 231, “While it is incumbent upon an attorney zealously to represent his client, he must always respect and defer to those decisions properly reserved to his client.” How many members of the State Bar actually honor this ethical obligation in their practice, rather than in the breach?

How hard is it to ask our clients what they actually want us to achieve, and make an effort to do that consistent with the law, ethics, and good legal practice? Many look at how much they can bill, if they are on the defense, or how much they will get paid as a fee, if they represent the injured worker. It is only human that we consider our own interest. But a higher obligation requires that we focus on what is best for our clients, not what is best for ourselves.

 

We point to our rhetoric that we are helping our clients and doing what is best for them, but we need to ask if we are not doing what seems best for us?

A higher obligation requires that we focus on what is best for our clients, not what is best for ourselves.

The vast majority of workers compensation claims never are litigated by attorneys, but the ones that are fall into two major groups: 1) where both sides attempt to reach a fair and reasonable settlement of the issues and 2) where procedure and form get elevated over substance in a protracted battle which more often than not angers the clients on both sides.

We are now all consumed with the UR-IMR situation, with many applicants' attorneys appealing to IMR every single denial, without concern for how reasonable the substance is, or whether their client might actually want the treatment the PTP is recommending. The same attorneys may complain about what a burden it is on their law practice to have to do all this extra work, for which there is no way to get a fee unless one can prove a penalty or sanctionable conduct.

 

We are now all consumed with the UR-IMR situation

What if the treatment requested is something that the injured worker would not take even if offered? Suppose I contact my client and find that they would actually never take advantage of any offer of water therapy because they are afraid of getting into a pool, or get sick from the chlorine? I am not going to file for IMR anyway, just to run up costs for the insurance company, since that would be against my client's interest.

I just don't believe in the knee-jerk reaction where one always does one thing, no matter what. I think we all have to consider what our clients want and what they would actually use, before we file for IMR. It is equally important that the defendant consider whether to provide a treatment which might be effective, such as physical therapy, and that would cost a lot less than an appeal.

If both sides used common sense and considered the real interests at stake, we might not have so many problems with the system. We might be able to look at our finger, instead of the moon, and still be wise.

 
If both sides used common sense and considered the real interests at stake, we might not have so many problems with the system. We might be able to look at our finger, instead of the moon, and still be wise.

Then again, if the folks at the DWC who micromanage all claims really wanted to be wise, they could change the system to create efficiency, and we would be rid of their obstinate bureaucracy

 
Change the system to create efficiency, not obstinate bureaucracy

Marjory Harris, Esq.

Marjory Harris began practicing law in 1974 as a defense attorney and later became an applicants' attorney and a certified specialist. She continues to represent injured workers and mentors attorneys on big cases.

www.workerscompensationcalifornia.com

 

Reach Marjory at (888) 858-9882 or email: MHarrisLaw@verizon.net

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