THE MEDICAL TREATMENT MESS
On the face of it, coverage for medical treatment for a work injury should be the best insurance program available, bar none. Labor Code 4600 provides for treatment and all things necessary to cure or relieve from the effects of your injury. There is no premium, no co-pay, no deductible, no spending limit and it is good for life. No other policy of insurance has a benefit package equal to that. At least, so it would seem.
Unfortunately, when we shine the harsh light of reality on the situation, an entirely different picture emerges. Like the portraits on the walls of Disney’s Haunted Mansion, a closer look often reveals an horrific picture. Unaided, if you are in need of treatment from a work injury, you are may well be left to deal with doctors who care more about pleasing the insurance company than they do about your recovery. Red tape stands between your doctor and the insurance company. Forms have become more important than their substance and content. This has come about because of legislative “reforms” that are designed to benefit employers and insurance companies and which work to the determent of the injured worker.
Beginning in 2005, employers and insurance companies were given the option of creating a “Medical Provider Network” (MPN) to which injured employers could be directed to obtain medical treatment. The idea was to allow those who paid the medical bills to assemble groups of providers who would treat at contracted rates. In reality, they provide an avenue of control over your treating doctor. While you can go outside the MPN for treatment, in most cases the insurance company only has to pay bills from the MPN doctor.
Like an HMO, the MPN has “gatekeeper” doctors (typically industrial medicine doctors or internists) where you will be directed if you are injured. These doctors become designated as the “primary treating physician” or “PTP.” The vast majority of these PTP physicians in the San Diego area are employed by a limited number of health organizations. Working under the close scrutiny of those who pay the bills, they know their primary goal is to provide limited care and to send the injured worker back to work as quickly as possible, no matter what the situation. True story: One of our clients was actually told by her PTP that he was not allowed to take her off work after a severe head trauma, but he offered to give her so many work restrictions they would not be able to use her. Instead, the employer made her come to work part time and stand at the door as a “greeter.”
The shocking truth is that, all too often, the premature forced return to work makes the problem worse. In one case a roofer who sustained a severe muscle tear to his right arm was given a return to work order with a restriction against using his right arm. This well-motivated gentleman tried to comply, only to subsequently injure his left arm trying to do with it what he could no longer do with the right. These kinds of unfortunate events often occur because the doctors do not take the time to fully understand the nature of the work requirements and they want to make sure they do not get kicked off the MPN for taking too many patients off work and giving them time to truly heal.
While the MPNs are required to have specialists (orthopedic surgeons, internists and neurologists), often these doctors refuse to take a case unless it is by referral from the PTP. Often your primary treating physician will be hesitant about making that referral because it increases the cost of medical care in the case.
Insurance carriers have been required by law to have a program in place whereby the recommendations of your treating physician can be reviewed and second-guessed by a doctor on the payroll of the insurance company. The idea behind the creation of this process, called “Utilization Review,” was that an examiner would have the chance to obtain a second opinion regarding treatment recommendations if or when the adjuster had bona-fide questions about the treatment being recommended on an accepted injury. It was anticipated that an insurance carrier would apply common sense to many treatment requests and simply approve them when and as received.
Today, many insurance companies require every treatment request to be second-guessed by a doctor on the company payroll in the hopes that many of the requests will be denied or approved only in part. The process causes a delay between needed treatment and authorization for that treatment, and even more delay before the insurance company has to pay for it. For the insurance company, delaying benefits is like putting money in the company bank account at your (or your doctor’s) expense. If not overturned, UR treatment denials are good for one year.
It should be noted here that many treatment requests from doctors go successfully ignored by insurance companies because the doctor fails to submit the request on the proper form (called an RFA, or request for Authorization). Only treatment requests submitted on RFAs are subject required response from the insured company. If your doctor tells you that he or she is seeking authority for some specific course of treatment or for medications, please make sure you remind the doctor that the request needs to be faxed to the carrier on the official RFA form.
Sometimes your attorney may be able to get around utilization review treatment denials if it can be demonstrated that the tight deadlines on the UR process were not followed, or if the UR report itself is defective or relies on incomplete information. In those instances, your attorney can seek an expedited trial before the WCAB to get the UR report thrown out. However, this does not guarantee that the treatment will be ordered by the judge. Your attorney must still be able to prove that the recommended treatment is reasonable and necessary and within the treatment guidelines adopted by the Administrative Director.
In addition to seeking to overturn the UR decision by demonstrating legal flaws in the process that generated it, every unfavorable UR determination can be appealed in a process called Independent Medical Review (IMR). When the UR denial report is sent to you, it should be accompanied by a pre-filled form which needs only to be signed and mailed together with a copy of the UR report itself. These appeals go to the Administrative Director and then they are forwarded to a company with physicians whose job it is to review the review (so to speak) and issue a determination as to whether the UR denial of treatment should be upheld or whether the treatment should be provided. If the IMR process overturns the UR determination and recommends the treatment, the insurance company must provide it. However, historical statistics tell us that at least 75% of the IMR appeals are decided against the injured worker and in favor of the UR denial.
Finally, while it is true that UR denials are good for one year and subsequent requests for the same treatment will be ignored, it is possible to re-visit recommended treatment within the one year period if the treating doctor issues a report or reports indicating that your condition has worsened since the earlier UR determination issued. If this should occur, the UR process and time clock re-sets for another go-round.
If UR won’t approve the recommended course of treatment, you may have the option of obtaining new or additional treating physician within the MPN. You may change treating physicians within the MPN as often as you wish. You may also have both a primary and secondary treating physician if needed. For example, if you are in pain and your treating doctor is trying to get authorization for injections or surgery without success, it may be possible to get your doctor to seek a consult and additional treatment in the specialty of pain management. Within statutory limits, additional therapy or chiropractic treatment may be available as an alternative to more aggressive or invasive treatment.
Your attorney can help you navigate your way through treatment issues. Experienced Workers Compensation specialists learn a great deal about many of the doctors within the County where you live. While none of us can predict or guarantee what any doctor may say in your particular case, we do know doctors in whom we have some confidence, and doctors who we would not recommend to our clients. Type your paragraph here.
Certified Specialist, Workers' Compensation, The State Bar of California
Board of Legal Specialization