This is one in a series of blogs addressing the most common questions we receive regarding workers' compensation in California. It is not meant to be legal advice nor does the information provided here apply to all situations. For information on your particular case, you should contact an attorney.
I have the decision of the independent medical review (IMR) and it determines I should not get the treatment my doctor is recommending for me to get well. What can I do now?
This is another question we get asked frequently. Unfortunately, there are no easy answers to this one.
There are two types of IMR in California workers' compensation. There is an IMR process as established under California law referred to as UR-IMR (Labor Code §§ 4610.5 and 4610.6). There is also another IMR established under California law that is available to injured workers for disputes when the injured worker is treated in a Medical Provider Network (MPN), referred to
as MPN-IMR (Labor Code § 4616.4). (Medical provider networks are a group of doctors that the insurance company selects to treat workers injured on the job, not much different than an HMO. With very limited exceptions, the injured worker is required to be treated by doctors within the insurance company's MPN.) This blog will focus solely on IMR decisions obtained through the UR-IMR process as it is the more common of the two processes.
The UR-IMR process was passed into law by the California legislature in 2013. As of July 1, 2013, it applies to all injured workers regardless of when he or she was injured.
The answer depends on the particular situation. If you and your doctor believe that the UR-IMR decision denying your recommended medical care has some merit, you both can agree on a different course of medical treatment. You must then propose that to the insurance company or employer (for our purposes here, we will refer to both as the insurance company) for approval through utilization review (UR). (For more on the UR process, see prior blog posts.) If that different course of medical treatment is approved, then you get the treatment you need to get well.
If you, and more importantly your doctor, disagree with the UR-IMR decision, your only choice is to file a Petition Appealing the IMR Decision (a legal pleading) with an administrative law judge (ALJ) asking that the decision be determined invalid. The petition must be filed within 30 days of the date of the UR-IMR decision. If you do not file during that time, the UR-IMR decision becomes final.
The UR denying the recommended medical care is generally deemed good for 12 months, with some limited exceptions. So if the same doctor recommends the same treatment within 12 months after the date of denial-without noting a change in the circumstances of your symptoms or medical condition-UR will not be performed on the request and your treatment will be automatically denied.
Along with the filing of the Petition Appealing the IMR Decision, you need to file a request to have the petition heard before an ALJ to make a determination on the validity of the UR-IMR decision.
There are only 5 legal grounds to show an UR-IMR decision is invalid. Two of those grounds are bias and conflict of interest of the UR-IMR doctor. These are "paper tiger" grounds, as the UR-IMR doctor by law is anonymous even after a challenge to his or her determination. It is very difficult, if not impossible, to prove an individual's bias or conflict of interest if that person is nameless, faceless and totally anonymous. (For more on UR-IMR and the process, see prior blog posts.)
That effectively leaves only 3 grounds to determine that the UR-IMR is invalid. But under California law, as implemented by the legislators, an ALJ is not allowed to order that you get the medical care recommended. The law states that the ALJ may only determine that the UR-IMR is invalid and order that you get another with a different UR-IMR doctor. Given that it takes on average 60 days from the time your doctor makes the first request for your treatment through the initial UR-IMR, 6 months to get a decision from the judge that the UR-IMR is invalid and order you a new one, and another 45 days for the new UR-IMR to be completed, you have waited a minimum of over 9 months to find out if you can get the medical care recommended by your doctor for you to get well and back to work. And there is no guarantee that the new UR-IMR will agree that the recommended medical treatment should be approved. It's a very inefficient system. We wonder if the legislators who passed this law would be willing to play by these rules for their spouses, children, significant others or close friends. I think we know the answer to that question.
At the Law Offices of Robert A. McLaughlin, APC, we file many Petitions Appealing the IMR Decision and have received multiple awards providing that our clients get another UR-IMR. Sadly, based on our experience, the new UR-IMR doctor is usually "bending over backwards" to find a way to maintain the original denial of the recommended treatment. In some cases, we have had to file a Petition Appealing the IMR Decision of the second UR-IMR ordered by the judge! It's a very frustrating situation.
If you are being treated by a doctor in your insurance company's MPN, you may be able to get around a UR and/or UR-IMR denial by requesting a second opinion from another doctor in the MPN. Often if you tell your doctor you would like a second opinion, your doctor will recommend another doctor in the MPN for you to see. In a future blog we will discuss the process and use of a second and/or third opinion in the MPN.
At the Law Offices of Robert A. McLaughlin, APC, we have extensive experience in filing and prosecuting Petitions Appealing the IMR Decision. If you have a case and need assistance with obtaining medical care, please call us at 866-324-9558. We will be more than happy to discuss your case with you.