The wait for a ruling in Valdez is over.

The California Court of Appeal, Second District, Division 7 has spoken in Elayne Valdez v. WCAB and Warehouse Demo Services. The Court reversed a WCAB holding that precluded use of reports from non-MPN treating physicians under all circumstances.

In Valdez the worker treated briefly with MPN physicians but was thereafter directed by her attorney to a non-MPN physician.

The circumstances as to whether the carrier had met its MPN requirements remains unclear. As the Court of Appeal noted:
"Whether petitioner was actually informed of the MPN and the need to treat with physicians who were a part of the MPN are therefore contested issues. In light of our disposition of the petition, however, we need not address and resolve these issues; they remain to be resolved on remand."

In reaching its decision the Valdez court focused on Labor Code 4616; deciding that:
"We conclude that the rule of exclusion laid down by section 4616.6 applies only when there has been an independent medical review performed under the authority of section 4616.4. We therefore annul the decision of the WCAB and remand with directions for further proceedings that are consistent with this opinion."

The Court reaffirms that :
"If the Legislature intended to exclude all non-MPN medical reports, the Legislature could have said so; it did not."

Further, the Court of Appeals says:
"The WCAB noted that, as in Tenet, the employee was not free to ignore the dispute resolution mechanisms of sections 4061 and 4062. However, as is apparent, Tenet does not support the conclusion that “[a]ccordingly, the non-MPN reports are inadmissible to determine an applicant’s eligibility for compensation.”The statutory scheme does not exclude from consideration medical reports prepared by non-MPN physicians, but in fact provides that medical reports prepared by the employee’s treating physician may be submitted to the qualified medical evaluator.There is no statutory requirement that the employee’s treating physician be part of the employer’s MPN. Rather, the statute provides that medical records “relevant to the determination of the medical issue” may be provided to the qualified medical evaluator. "

Moreover, the Court notes:
"Our conclusion is buttressed by the employee’s undoubted right to contract with physicians of his or her choice. A rule excluding medical reports by such physicians for the sole reason that the report was not prepared by an MPN physician would eviscerate the right guaranteed by section 4605."

Technical statutory interpretation questions aside, what does this mean as a practical matter?

There are cases where, for a variety of reasons, workers treat outside the MPN. To exclude reports in many of those cases would be to ignore important information on diagnosis and treatment progress.

After the WCAB issued its opinion in Valdez I had noted that the rule it enunciated was overly harsh and unlikely to withstand scrutiny.

That has now come to pass.

But if attorneys seeking to take "medical control" and doctor mills see this case as a green light to circumvent MPNs, I think they misread the case. Reports from non-MPN physicians may be admissible in proceedings and reviewable by QMEs/AMEs but whether the non-MPN physician will be paid is another matter. So I would not read Valdez to say that attorneys can routinely "take control" by circumventing a validly noticed and maintained MPN.

But there's a fine line there if non-MPN reports are admissible. So the case goes back to the WCAB on the MPN issues.

Julius Young
www.workerscompzone.com
www.boxerlaw.com

If there is one thing that leaves injured workers frustrated, it's the procedures that frequently result in treatment denials.

Between 2005 and 2010, medical cost containment expenses almost quadrupled. That includes expenses for utilization review and bill review.

Insurers assert that without cost containment procedures, medical treatment costs would be even higher, resulting in unsustainable premium increases.

The chorus of complaints about UR is particularly loud from workers who settled cases years ago and were awarded "future medical" as part of their case resolution.

From the employee's perspective, they bargained for medical as part of a settlement or as part of a court award. Not only may they be required to change doctors to a new physician on an employer network. Now they find that almost everything that is prescribed is either delayed or denied.

So the worker who had been represented years ago calls his former attorney, asking for help.

In some instances, the worker may find that his attorney has retired. But even where the attorney is still in practice, the worker may have trouble obtaining help.

The attorney is busy handling current cases. While some attorneys will get involved in treatment denial issues for clients whose cases were handled years ago, others simply are not staffed to take on these issues as a project unless they can be paid for doing so.

The problem here is that under current law, attorneys representing injured workers are not compensated in most situations.

An attorney who decides to help fight treatment denials may expend a substantial amount of time and effort on UR appeals. Time spent talking to the client, tracking down the medical reports and UR paperwork. Analyzing time frames to see if UR time limits were observed. Using the QME process to appeal denials. Possible court appearances.

And even if there's a victory for the worker, the victory may be on one treatment issue.

But this may be repeated again and again with ongoing treatment issues for this worker.

And that's only one worker.

Many applicant attorneys have represented thousands of workers over their career. So it's not hard to see why some applicant firms limit their involvement in challenging treatment denials. There simply are not enough hours in the day for many firms.

And that's probably fine with many insurers, who are happy that attorneys are not incentivized to fight denials on behalf of workers.

This is the problem that AB 1687 (Fong) seeks to address.

AB 1687 would require that when injured workers are given explanations as to why the insurance company modified, delayed or denied medical services, they also be given a description of available options to appeal such a decision.

Furthermore, AB 1687 would allow attorneys to be compensated a reasonable fee for their efforts on behalf of injured workers to enforce previously awarded medical treatment.

Supporters of the bill include the California Professional Firefighters and the California Labor Foundation.

The bill has already cleared the California Assembly Insurance Committee and the Assembly Appropriations Committee.

But with Governor Brown's likely unwillingness to sign piecemeal workers' comp changes, the bill's future may depend on what occurs later this year with other components of workers' comp reforms.

Here is a link the current text of AB 1687:
http://www.leginfo.ca.gov/pub/11-12/bil ... sm_v98.pdf

Stay tuned.

Julius Young
www.workerscompzone.com
www.boxerlaw.com

Do ambulatory surgery center owners do more surgery? If so, is that bad?

What are the implications for workers' comp?

On an anecdotal level, I recently had minor hand surgery at an ASC. The facility was incredibly efficient, with far less bureaucracy than I had experienced with even more minor procedures in a hospital setting.

In looking at the list of the doctors who own the facility and who practice there, I noted that many of the top orthopedic surgeons in the area were participants. Many of these are docs whose integrity and clinical judgment I greatly respect.

But a recently released study by the Workers' Compensation Research Institute of Cambridge, Mass. attempts to document a pattern of increased surgical utilization by owners of the centers.

Time will tell whether the statistical research done by WCRI on these issues holds up. The data studied was from Florida during 1997 to 2004, focusing on arthroscopies and carpal tunnel surgeries.

The study begins by noting that:
"Some studies have found that surgeon owners of ASCs perform more surgeries than surgeons who are not owners (e.g., Mitchell, 2010; Hollingsworth et al., 2010; Gabel et al., 2008; Lynk and Longley, 2002). These studies raise a concern about potential conflicts of interest that may influence treatment decisions and be inconsistent with high priority national goals of containing the rising costs of medical care while maintaining quality care."

The study, by Christine A. Yee points out that:
"In 2011, legislation was passed in California prohibiting doctors who own many kinds of medical businesses from referring their workers’ compensation patients to those businesses, or from using products from those businesses in their practices.2 This law, effective January 1, 2012, requires physicians who own these types of businesses, including ASCs, to inform insurers of their ownership. However, the law allows physician owners of ASCs to send patients to their own ASC for surgery, with payor preauthorization. Previously, California allowed self-referrals to ASCs, yet prohibited self-referrals to other types of entities."

Why do owned of ASCs do more surgery? There appears to be a recruitment effect, so that doctors who do lots of surgeries tend to buy into ASCs. Also, the study finds that surgeons can do more surgeries in ASCs, which are more efficient. Another reason claimed by the study are financial incentives. Yee claims that:
"They increased their surgery volumes by 14 to 22 percent due to the financial incentives, or 15 to 25 surgeries per year for the average surgeon who became an owner—compared with the number of surgeries that each of these surgeons performed prior to becoming an owner. This effect explained 14 to 21 surgeries in the difference in surgeries performed per year between owners and non-owners, or 18 to 33 percent."

Another factor was improvement in medical technology.

The WCRI charges that ASCs have tended to increase workers' comp volume:
"Relative to the types of patients they would have treated had they not been owners, ASCs provided more surgeries to patients covered by workers’ compensation, commercial indemnity insurance, and Medicare. These payors were higher-paying insurers at the time of the data. Due to owner financial incentives, the average surgeon increased the number of workers’ compensation patients by 17 to 23 percent and the number of patients with commercial indemnity insurance by 20 to 51 percent. Surgeons did not increase the number of patients covered by Medicaid and certain health maintenance organization (HMO) plans."

It is important to note that the WCRI study does not claim that the surgeries that were done were not necessary or that the surgeries had bad outcomes.
Specifically, the study says"
"This study did not address whether any of the additional surgeries (due to financial incentives, increased capacity from expanding one’s network, or ASC efficiency gains) were necessary or not. We also did not address whether they were cost-effective or not. If medically necessary and cost-effective, then increasing surgeon ownership would have improved access to surgical care for those who previously did not have access, in particular, those covered by workers’ compensation, commercial indemnity insurance, and Medicare. If the surgeries were not all necessary, then increasing surgeon ownership would be a cost driver and merit increased regulatory attention. This question deserves additional research using data on patient outcomes."

The WCRI study makes various general recommendations for payers and policymakers but notes that ASCs have many advantages, including costs.

Concluding, the WCRI study notes that:
"We speculate that physician ownership and the role of ASCs will become a bigger issue for injured workers and workers’ compensation payors in the next decade. The use of ASCs for orthopedic services and pain management services is growing rapidly (Koenig et al., 2009). ASCs may become as dominant a setting for services treating musculoskeletal and nervous system conditions as they are for eye surgery and gastroenterology today. Management companies of ASCs indicate orthopedics as the most desirable medical specialty in which to do business (Fields, 2011). Since many injured workers today are treated with these types of services, we may expect the issue regarding physician ownership of ASCs to receive more attention by regulators that oversee workers’ compensation systems in the future.
The efficacy of current policies intended to counteract adverse effects of physician ownership has not been determined. The optimal policy would curtail any adverse effects, while encouraging medical innovation focused on producing high quality and cost-effective care."

Wonks out there may want to download the study, which is chock full of data and graphs. (available for a fee) off of the WCRI website:
http://www.wcrinet.org/studies/public/b ... urgery.pdf

Stay tuned.

Julius Young
www.workerscompzone.com
www.boxerlaw.com

A key focus of upcoming legislative or regulatory proposals in California's workers' comp system will be escalating medical costs, measures used to contain costs, and the costs of those measures.

It's striking that almost everyone seems unhappy with the current system.
Workers and doctors are frustrated with the delays and hassles of the UR system.

These delays can cause considerable suffering and delay return to work, throwing the worker and families into financial crisis, particularly with the 104 week limitation on TTD.

And many stakeholders are now uncomfortable with the expanding price tag of cost containment.

So there could be tinkering with utilization review procedures. Proposals to eliminate UR altogether will surface, replacing it with an Independent Medical Review scheme that is used with California's managed care health insurers (more on that in posts to come). Those proposals could include appealable IMR or, most extreme, a non-appealable IMR.

But if IMR does not come to pass and UR survives, there are many things that could be done.

Why should an insurance carrier be allowed to have a financial interest in a UR company?

Financial conflicts and financial incentives of UR physicians need to be better spelled out.

If an employer can pick doctors to be on its own MPN network, should it be allowed to UR the medical requests of the doctors it selected?

Shouldn't UR be reserved for medical procedures that exceed a certain dollar threshold? Does a cane or a brace need to be UR'd?

Should a carrier be allowed to do utilization review again and again on medication requests even where the medicines have been prescribed for a long time?

Shouldn't the rules be clarified to require the carrier to provide adequate contextual medical records to the UR physician?

The law and regulations could be tightened to simplify the UR timeframes and clarify the process of appealing UR denials. Using the QME system to appeal every UR denial is costly and unworkable.

But lest you think this is an applicant laundry list, there are many other changes that could be considered as part of a UR and treatment overhaul.

Perhaps the system could require more clarity from treating doctors on the history of their treatment, the goals and progress toward those goals.

If a test or procedure is to be repeated, a higher threshold of documentation could be required.

Doctor mills which churn out constant procedures and half a dozen medications (or more) on each patient could be required to give a deeper analysis of the long term care plan and the costs and benefits.

In treatment requests, doctors could be required to explain more of the risks and side effects of medications and procedures. For example, how many physicians document the dental risks of certain opioids, which may lead to claims of consequential dental injury?

Tie breaker procedures of the sort currently used for spinal surgery could be used for other types of surgeries or medical device use.

A special protocol could be set up for handling opioid treatments.

MPN regulations and lien regulations could be tightened to make it less appealing for doctors in accepted cases to risk treatment on a lien (something that currently happens on a regional basis).

Special focus could be given toward long term chronic treatments and how to achieve a cost-benefit balance in such situations.

Employers who wanted to offer workers the option of bringing their treatment in-house to employer-sponsored group health plans should be allowed to do so.

And of course, doctor pay could be adjusted.

A shift from the California fee schedule to a Medicare-based RBVS system has been discussed, but not implemented.

And outcome based pay to medical providers could be considered. More on that later.

I recognize that some of these concepts are anathema to legal and medical colleagues I know and respect.

But a train is rumbling down the track. Lots of things are in play.

Julius Young
www.workerscompzone.com
www.boxerlaw.com

This was a week where I personally learned one of the obstacles injured workers face.

I was lucky. The malady was not industrial. Between my persuasive powers and the fact I knew the doctor, a thirty day wait for an appointment was reduced to one-half day.

There was no UR hoop to navigate. My bleeding and swollen finger would be addressed.

What did I learn in the process that relates to workers' comp?

That even a minor injury can sometimes knock a worker-off task.

In this instance it was minor knuckle surgery. Surgery that was in and out at an ambulatory surgery center.

Surgery at 8 am, under a light general anesthetic, and back to work by lunchtime. No post surgical pain meds given, and none requested.

But it was interesting to experience the effect of having even one digit immobilized and anesthetized.

For several days it's been hard to type. Keyboard usage is fundamental to modern lawyering. Answering e mails. Sending instant messaging to staff.
Holding a briefcase and an umbrella.

So it's been hunt and peck at a keyboard. Productivity slowed.

I also got a glimpse of the disruptive effect the medical system can have on an individual. Schedules are disrupted. Other tasks-or pleasures-get canceled or delayed.

Suddenly there are consultations. Pre-op appointments. Trips to the lab for pre-op blood panels. Trips to get an EKG before the doctor will do a simple surgery under anesthesia. Surgery itself.

And the family is affected. The spouse misses work to provide a ride home.

And then post op appointments.

For a number of workers this becomes the steady routine, sometimes for years on end.

Frankly, it's exhausting. It's easy to see how ambition gets sapped, and attitudes can deteriorate. And it's no surprise that employers would sometimes get cranky if a worker's productivity dropped off as a result.

Then there's the humbling aspect of it all.

You may feel healthy overall striding into the surgery center in blue jeans and boots.

But suddenly you're wearing a gown that barely ties in the back. You're wearing little paper booties with faint rubber no-slip strips. And you're told to put on a blue hair net. An iv is in your arm.

Told to avoid drinking any liquids, you are in caffeine withdrawal as you await the event.

No wonder you feel vulnerable.

My point is that even where one is grateful for having excellent doctors and the most efficient care, entanglement with the medical system is a psychic drain.

Not enough attention is paid to this in our comp system. With lives disrupted, work habits and routines get disrupted. It can all run downhill.

Julius Young
www.workerscompzone.com
www.boxerlaw.com