EK HEALTH

by Steve Kline, Esq.
EK Health Services' Legal Counsel

As stated in previous articles, the Workers' Compensation Appeals Boards issues rulings on many cases every day. There are three levels of opinions.

When all seven commissioners decide a case and issue a ruling, it is classified as en banc. Those rulings are binding on trial judges throughout the system until overturned or modified by a subsequent en banc case or the Court of Appeal or the Supreme Court.

The next level is a decision by a panel of three commissioners who make a ruling, and the entire Board by majority vote designates it as a “Significant Panel Decision.” The DWC explains on its website that “[T]he significant panel decisions, although not of precedential value, are cases selected as involving new or recurring issues about which there is little published law, or where it would be beneficial to provide a restatement of a legal principle or an issue of general interest. These latter decisions are intended to provide information and guidance to the compensation community and have been reviewed by all of the board members who agree that the panel decision merits general dissemination.”

Finally, there is the great mass of decisions that are Panel Decisions. A random selection of three commissioners looks at cases and reads the petitions and opposing papers. They meet and decide on a ruling and a short opinion is written. These have no precedential value; however, the decisions do give us insight into how three of the seven commissioners are thinking on various issues and fact patterns.

This month’s case is a Panel Decision. Ortega v AWHS, Inc., et al. ADJ2585403, involved these facts. The injured worker had 80% permanent disability with a need for further medical treatment for, among other things, sleep disorder. He had been prescribed Trazamine. It had been determined by UR to be reasonable and medically necessary for some time.

On March 19, 2009, a UR determination, following a new request for authorization, was made which stated, “the request for Trazamine is both reasonable and medically necessary.”

On March 25, 2009, the Physician Reviewer wrote, in a Clarification, the following:

“I have been asked to take a second look at this case to determine the medical necessity of Trazamine for this claimant. It has been brought to my attention that the use of Medical Foods such as Sentra PM are only authorized when there is evidence of a nutritional deficit that has causal relationship. Since this does not appear to be the case with this claimant, it would be reasonable to allow for authorization of the Trazodone only. Therefore, this is a Modified Decision in that the Trazamine is not medically necessary. The Trazodone is medically necessary and this agent is authorized.”

As a result of that opinion, the request for authorization was denied.

Thus, the question is posed: Can a Utilization Review (UR) determination that a request for authorization is reasonable & necessary medical treatment be reversed by giving the UR physician reviewer additional information that changes his opinion?

The Panel said no. They based their decision on Labor Code §4610 that allows additional information or tests to be considered before a UR determination is made, and “there is nothing in §4610 that allows a defendant to try to change the opinion of its UR physician once that opinion has been reached.”

If the defendant disagrees with that determination, the Labor Code §4062 dispute resolution process must be initiated. To allow the actions of the defendants in this matter to stand would be to engage in the disfavored “doctor shopping” process.

The Panel also commented that the opinion was not based on the Medical Treatment Utilization Schedule (MTUS) guidelines set forth by the Administrative Director. Clearly, the hearsay, second hand information used by the physician reviewer was not part of the MTUS. Accordingly, the denial was invalid and all subsequent denials based on this opinion invalid. The defendants had not used the dispute resolution process and were barred from using that process.

The lessons to be learned are that Utilization Review is based on the MTUS or nationally recognized, scientific, peer-reviewed evidence based medical guidelines. If a UR opinion is made that determines a treatment request is reasonable and medically necessary based on the guidelines, then the defendants have only the dispute resolution process of Labor Code §4062 to reverse that opinion. Subsequent information to the UR physician reviewer is not allowed after a certification opinion has been rendered.

Thanks for your attention.