Download Letter to PTP re: Treatment

Dear Dr. ?:
I am writing to you regarding the above referenced applicant whom you are treating.
My client and I, and I am sure you are as well, are very frustrated with the UR and IMR denials
that are being constantly issued in this case, especially with respect to medications. I have filed
several IMR appeals in this case already.
It is for this reason, and the continual denial of your recommended medical treatments, that I am
writing to you. Enclosed for your review are the following:
1. Significant Panel Decision in J. Patterson v. CIGA;
2. Trial Decision in Ralph Loynachan v. County of Los Angeles from the Hon. John C.
Gutierrez, WCJ; and
3. Regulation 35.5.
I realize this is a lot, but I ask that you please bear with me and allow me to explain the
significance of these cases and regulation.
I. J. PATTERSON CASE
EMPLOYER MAY NOT UNILATERALLY CUT-OFF MEDICAL TREATMENT
PREVIOUSLY APPROVED WITHOUT PROOF OF A CHANGE IN THE
EMPLOYEE’S CONDITION INDICATING THAT THE MEDICAL TREATMENT IS
NO LONGER REASONABLY REQUIRED TO CURE OR RELIEVE THE INJURED
WORKER FROM THE EFFECTS OF THE INJURY.
This is a significant panel decision, meaning all parties may legally rely on it. The case stands
for the proposition set forth above.
The WCAB stated that the defendant could not force the PTP to file an RFA for medical
treatment previously provided (in this case a nurse case manager for at least 4 years) and then
use that RFA as grounds to submit it to UR to deny the requested medical treatment. In order to
deny the nurse case manager that had been provided for at least the last 4 years, the employer
had to make a showing of a change in the injured workers condition justifying a change in the
previously provided medical treatment plan which consisted of a certain number of hours a week
of a nurse case manager.
There is useful language in this case that can be used as a learning tool with respect to the
treatment requests you make for injured workers. The WCAB stated:
Defendant also misconstrues applicant’s burden in arguing that she was obligated to
prove a need for nurse case manager services at the January 28, 2014 expedited hearing.
To the contrary, the first issue identified in the Minutes of Hearing was “Whether there
was good cause to discontinue the services of a nurse case manager by defendant.” This
was properly identified as the first issue that needed to be addressed because when
defendant initially provided nurse case manager services it effectively acknowledged that
the services were reasonably required to cure or relieve the effects of the industrial
injury in this case. Thus, the second issue listed in the Minutes of Hearing was not
reached, and applicant had no obligation to prove that nurse case manager services should
continue. Instead, it was defendant’s obligation to prove that nurse case manager
services are no longer reasonably required. As discussed below, defendant was required
to meet that burden through the presentation of substantial medical evidence. (Emphasis
mine.)
In addition, the WCAB stated:
Defendant acknowledged the reasonableness and necessity of nurse case manager service
when it first authorized them, and applicant does not have the burden of proving their
ongoing reasonableness and necessity. Rather, it is defendant’s burden to show that
the continued provision of the services is no longer reasonably required because of a
change in applicant’s condition or circumstances. Defendant cannot shift its burden
onto applicant by requiring a new Request for Authorization and starting the process over
again. (Emphasis mine.)
So what does this mean for your recommendations for medical treatment? If it is part of an
ongoing and previously provided medical treatment protocol, then it should continue without
interruption. So how the request for medical treatment is phrased is very important, especially
with regards to opioid medications.
In the area of pain management and other medical specialties medications are often prescribed as
part of a medication protocol or plan that has been in effect for several years. The medications
do not improve the injured workers functional capabilities but does allow him/her to continue
performing their ADLs at their current abilities and stop further deterioration. Unfortunately,
many medications cannot be provided in an open-ended prescription for an indefinite time like
the nurse case manager in Patterson. Thus, RFAs are required every 30 - 90 days.
For this reason, how the justification for the RFA is phrased is very important. For example,
based on the Patterson case a phrasing such as:
“I re-prescribe the medications noted in the RFA which have been part of an ongoing
treatment protocol for the injured worker since (Insert . . . number of years, etc.) and have
been previously approved by the carrier as part of this ongoing and continual medication
treatment protocol and plan. The providing of the medications allows the injured worker
to maintain his/her current level of functioning. Without the medication protocol, the
injured worker’s condition deteriorates, for example (Insert necessary examples . . .)
Based on my physical examination and testing, there is no change in the injured worker’s
condition that would reasonable require a change in the previously prescribed medication
protocol and plan. Moreover, I have reviewed all UDS to date and the recent CURES
report and there is no indication of abuse by the injured worker to his/her medications.”
This approach, or something similar, would provide your patient the best chance to obtain the
medical care and medications that you have prescribed for him/her.
II. R. LOYNACHAN CASE
THE EMPLOYE MUST PROVIDE MEDICAL CARE OR TREATMENT THAT NOT
ONLY CURES BUT MAY ONLY RELIEVE THE EMPLOYEE FROM THE EFFECTS
OF THE WORK INJURY.
The legal standard which provides that medical care which relieves, without curing, is required
to be provided to injured workers was discussed in the case of R. Loynachan. This case is not
legal precedent, but provides us insight on how WCJ’s may consider the fact that the Labor Code
provides that injured workers get all treatment reasonable and necessary to ‘cure or relieve’ the
injured worker from the effects of the work injury. It appears to many in the current workers
compensation system that the MTUS, ACOEM, ODG and other evidence based medicine
guidelines solely focus on the cure aspect; but do not address the relieve aspect of the Labor
Code.
This case has some similarities to the Patterson case and similar good language. The WCJ stated
in the case:
Pursuant to the medical recommendations authorization was provided, applicant was
receiving consistently 24 sessions of cognitive behavioral psychotherapy for
approximately 3 years. These sessions were modified to only 6 sessions by a UR
determination . . .
Plus,
[F]urthermore applicant was seen and evaluated by an AME who concurred with the
psychotherapy treatment sessions prescribed . . .
Also,
IMR and UR both ignored the medical opinions and observations of Dr. . . . and AME . . .
in that the applicant was making slight progress towards cognitive improvement and
preventing further deterioration of cognitive skills. However, IMR did not concur that
“slight progress” demonstrated that the sessions would lead to complete cognitive
function in order to justify the prescribed and recommended psychotherapy sessions.
(Emphasis mine.)
In addition,
[T]he reasonable and necessary standard of medical care or treatment in workers’
compensation is that care or treatment that “cures or relieves” the applicant from the
effects of the industrial injury. It would appear IMR has not adequately evaluated the
medical evidence in order to comprehend the workers’ compensation principal and the
concept of “cure or relieve” from the effects of the industrial injury. (Emphasis mine)
So the WCJ concluded that the IMR:
[I]s not consistent with the workers’ compensation standard of reasonable and necessary
medical care or treatment to “cure or relieve” from the effects of an industrial injury,
where according to the opinion of the AME . . . the applicant has made slight progress in
the improvement of cognitive learning skills preventing further deterioration and
maintaining the slight progress of applicant’s cognitive function as a basis for further
improvement of applicant’s industrially caused mild traumatic brain injury.
What the above tells us is that if the medical treatment is being recommended to relieve as
opposed to cure, it should be justified as same in the supporting documentation to the RFA. For
example:
Further cognitive behavioral psychotherapy is prescribed again for the injured worker.
This has been part of an ongoing treatment protocol and plan for the injured worker since
(Insert info indicating inception of txmt plan . . .) and has been previously approved by
the carrier. While it is hoped that the ongoing prescribed cognitive behavioral
psychotherapy will lead the injured worker to have improvement in their cognitive
learning skills, this cannot be guaranteed. However, the therapy will prevent further
deterioration and help the injured worker to maintain the gains made to date. In the past,
when the injured worker did not have the benefit of the prescribed cognitive behavioral
psychotherapy there was a decrease in his/her cognitive learning skills and activities of
daily living. For example, (Insert examples . . .)
Therefore, the prescribed cognitive behavioral psychotherapy is not only to assist in
curing the effects of the industrial injury but also to provide relief in the form of
preventing deterioration and maintenance of the cognitive skills gained along with his/her
increased activities of daily living noted above.
Such an approach, or something similar, provides your patients the best chances of obtaining the
treatment you recommend for them.
III. REGULATION 35.5
FUTURE MEDICAL CARE PROVISIONS CAN PROVIDE FOR ON-GOING AND/OR
CONTINUING MEDICAL CARE THAT WAS DENIED BY UR AND/OR IMR.
There is a difference between on-going and/or continuing medical care and future medical care.
Just because UR and IMR denied a request for on-going or continuing medical care does not
mean the physician cannot state that the denied on-going or continuing medical care is required
under the future medical provisions.
This distinction is noted in the regulations for PQMEs and AMEs. While I disagree with the
statement contained in the regulation that PQMEs and AMEs may not address any disputed
medical treatment as I believe it is inconsistent with the Labor Code, the regulation does go on to
state that the PQMEs and AMEs shall provide an opinion about future medical care.
Thus, if a medical provider believes that requested treatment that was denied by UR and/or IMR
is necessary in the future, than the medical provider should state so and the reasons for the
needed future medical care.
Please bear in mind that Medicare and many private general health insurance will very often
provide the recommended medical care that UR and IMR denied. Thus, if the denied
recommended medical care is not provided under the future medical provisions, Medicare will
not take it into account in determining an appropriate monetary set-aside. This will cause
Medicare to eventually pay for medical treatment not contemplated when the MSA was
approved which will just place a further financial burden on an already strained Medicare
system.
Thus a suggested approach in your future medical discussion would be as follows:
With respect to my previously recommended medical treatment of (Insert denied txmts,
meds, etc. . . .) these treatment recommendations were denied by UR and/or IMR.
However, I still believe these recommended treatments to be reasonable and necessary to
cure or relieve my patient from the effects of his/her work injury. My rationales for still
recommending these previously denied treatments in the future are (Insert medical basis
for txmts . . .) In addition, these recommended treatments are regularly provided for and
covered by private and public health insurance companies and plans such as Blue Cross Anthem, Blue Shield, Kaiser Permanente, plans under the ACA and Medicare for patients
with diagnosis, prognosis and symptoms similar to my patient. Therefore, despite UR
and IMR denials of these recommended treatments I believe these treatments will be
reasonable and necessary to treat the patient in the future (Insert if appropriate or
necessary - at a frequency of . . .)
Such an approach should assist you in making sure that the treatment you have recommended
that your patient may need in the future will be adequately addressed by all necessary parties.
Based on the discussion above, I would ask that in justifying RFAs, addressing medical
treatment recommendations and providing for future medical provisions that you consider
whether:
1. The medications or other medical treatment recommendations you provide meet any of
the above standards when making the request? If so, please consider how to justify your
treatment request as noted above.
2. If UR and/or IMR have denied previously requested medical care, do you believe your
patient requires the care under a future medical provision? Again, please justify why it
would be necessary as a future medical provision.
This correspondence is not meant to tell you or imply what opinions you are to find or conclude
in this matter. As always, your opinions should be based on your professional education and
training, your professional experience, the California Labor Code, the MTUS Guides, ACOEM
Guidelines or other scientific medical evidence, the AMA Guides 5th Edition, other WCAB
regulations (Board Rules), relevant cases interpreting the Labor Code and Board Rules and the
standards of practice in the your local medical community.
If you have any questions regarding this correspondence, please do not hesitate to contact me at
the telephone number listed above. If I am unavailable, please ask for my legal assistant, Alicia,
who will be more than happy to assist you. Thank you for your time in reviewing this
correspondence.