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“Pay no attention to that ‘Insurance Company’ behind the curtain!”

home-health-aide-workers-compIt’s a variation of the very memorable line from the classic movie, “The Wizard of Oz.” However, for injured workers attempting to get medical care for their injuries, dealing with utilization review denials of care and independent medical reviews often make them feel like they are in the “Land of Oz.”

In a recent panel case of Stevens v. Outspoken Enterprises, Inc., Ms. Stevens’ physician recommended on July 19, 2013, that she have a home health aide. Ms. Stevens was left 100% disabled after a work injury and required assistance with bathing and dressing, transferring from her wheelchair, preparing meals, picking up medications from the pharmacy and shopping.

Utilization review denied the aide. An independent medical review upheld that denial. But the commissioners at the Workers’ Compensation Appeals Board ruled that the standards used were invalid and hence the utilization review and independent medical review were invalid.

The commissioners pointed out in detail how the four physicians who have treated or evaluated Ms. Stevens all indicated her use of assistance from volunteers since 2006 to help her make meals, dress, bathe, transfer to and from her wheelchair and perform the general activities of day-to-day living that she can no longer perform on her own because of her work injury.

The commissioners were all but ‘screaming from the mountaintop’ that the workers’ compensation insurance carrier should provide the home health aide, which had been requested for Ms. Stevens nearly four years ago. However, because of the law on utilization review and independent medical review, the commissioners were precluded from ordering the home health aide. They were limited to just providing Ms. Stevens another faceless, nameless, anonymous independent medical review using an ‘expert opinion’ standard on whether Ms. Stevens should get the help she needs. And another delay of months, if not years.

The workers’ compensation insurance industry applauded the commissioners’ decision as they believe utilization review and independent medical review are mandatory and that there is nothing they can do about the decisions the process makes. But is that really true? According to the California Supreme Court, the answer is ‘No.’

In the 2008 California Supreme Court decision in Sandhagen, the Court noted that a workers’ compensation carrier need only send a treatment request to a physician to perform utilization review if the workers’ compensation carrier does not intend to approve the request. However, the Supreme Court in that case also concluded the mandatory utilization review consists of the workers’ compensation carrier AUTHORIZING the requested care from the doctors without physician review. This immediate authorization from the workers’ compensation carrier is “utilization review.” Therefore, the workers’ compensation insurance carrier has complete and total control to initially authorize the care requested—or overrule a utilization review or independent medical review denying care. This authorization constitutes “utilization review.”

Like the Wizard of Oz, the workers’ compensation insurance industry likes to hide behind the curtain of utilization review—while in reality they actually pull and push all the levers, bells and whistles to deny the care with full authority to authorize the requested medical care at any time.

The workers’ compensation insurance industry is the Wizard of medical care in the land of California workers’ compensation. And maybe just like the Wizard in the movie, they believe they are not really bad people when they allow utilization review to deny clearly necessary medical care to injured workers. However, Dorothy might not agree. When she forces the Wizard to come out from behind the curtain so the world can see who is really calling the shots, Dorothy proclaims the Wizard ‘a bad man’ for his actions. The Wizard, in an attempt to defend his actions sheepishly replies, “Oh no my dear, I'm really a very good man… but I'm a very bad Wizard.”

Stevens v. Outspoken Enterprises, Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS

State Comp. Ins. Fund v. Workers' Comp. Appeals Bd. (Sandhagen), (2008) 44 Cal.4th 230

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