• The Differing Types of Independent Medical Review — LC §4610 v. LC §4616
  • May 3, 2017 | Author: R. Jeffrey Stander
  • Law Firm: Stander Reubens Thomas Kinsey - El Segundo Office
  • Independent Medical Review. Although the words appear clear, confusion exists in their application, depending upon the statute that is utilized. Fortunately, on 1/5/17, the District Court of Appeal, Fourth Appellate District, in Parrent v WCAB, has prevented this confusion from subverting the requirement that Utilization Review is mandated in cases in which the treating physician is a member of the employer’s MPN.

    The employee sustained an admitted industrial injury during the time frame 1999 - 2002. In 2004, his case was settled via a Stipulated Findings and Award, in which he received permanent disability and a provision for medical care. Pursuant to that Award, he received treatment from Dr. Thompson, a member of the employer’s MPN. As part of that treatment regiment, Dr. Thompson issued an RFA for medications. The RFA was submitted to UR, which timely denied certification. That determination was upheld by IMR. Concurrent with the filing of the request for IMR, the employee filed a DOR challenging the validity of the UR decision on the ground that it was performed under Labor Code Section 4610 and should have been undertaken under Labor Code Section 4616. Labor Code Section 4610 pertains to the UR process. Labor Code Section 4616 describes the requirements and regulations regarding the establishment of MPNs.

    The Trial Court’s conclusions that the employer properly referred the RFA to UR and that it had no jurisdiction to address the issue of medical treatment was affirmed by the WCAB in its Decision After Reconsideration.

    In its lengthy Order denying the employee’s Petition for Writ of Review, the District Court of Appeal not only emphatically stated that all physicians, whether or not they are members of an MPN, must have their medical recommendations submitted in the form of an RFA to be determined by UR, but also clarified the protocols of Labor Code Sections 4610 and 4616.

    Where an injured worker disputes the treatment recommendations of an MPN physician, he or she can seek opinions from second and third MPN physicians regarding the treatment recommendation, and, it not satisfied, can request Independent Medical Review pursuant to Labor Code Section 4616.4(b) and Valdez v WCAB (2013) 57 Cal. 4th 1231, which is performed by a physician retained by the Administrative Director who will review all medical documents, may conduct a physical exam, and must prepare a report indicating whether the proposed treatment is consistent with approved medical standards. If the reviewer disagrees with the MPN physician’s diagnosis or recommended treatment, the employee will be entitled to receive the treatment from a physician within or outside of the MPN at the employer’s expense. The report is submitted to the AD, whose Decision based thereon is subject to appeal to the WCAB.

    The procedure set forth in Labor Code Section 4610 pertains to employers who dispute a treating physician’s medical recommendation by having an RFA completed by the physician submitted to UR to determine the propriety thereof as measured by whether it is consistent with approved medical standards. This process provides that no recommended treatment can be modified, delayed or denied without the conduction of a timely UR conducted by a physician, which is subject to IMR. State Compensation Insurance Fund v WCAB (2008) 44 Cal 4th 230)

    The Appellate Court concluded that the Legislature inserted nothing in the Labor Code Section that would exempt an MPN physician’s medical recommendations from being subject to UR. Labor Code Section 4616 exclusively addresses the injured worker’s ability to challenge a treatment recommendation made by an MPN physician.

    The outcome of this decision is also important because it serves as a preemptive strike against any challenge to recently amended Labor Code Section 4610(b), which will be effective for all injuries occurring on or after 1/1/18. That statute provides that, within 30 days following an admitted industrial injury, no MTUS compliant treatment for accepted body parts recommended by an MPN, HCO or employer selected or employee pre-designated physician will be subject to UR. However, this exception only applies in limited situations. Where the recommended treatment involves pharmaceuticals, non-emergency treatment, psychiatric treatment, diagnostic tests (excluding x-rays) and durable medical treatment valued in excess of $200, UR will be required by any physician, whether or not included within the MPN.