"Within one working day after an employee files a claim form under
Section 5401, the employer shall authorize the provision of all
treatment, consistent with Section 5307.27 (the State's medical
treatment utilization schedule) or the American College of Occupational
and Environmental Medicine's (ACOEM) Occupational Medicine Practice
Guidelines, for the alleged injury and shall continue to provide the
treatment until the date that liability for the claim is accepted or
rejected. Until the date the claim is accepted or rejected, liability
for medical treatment shall be limited to ten thousand dollars
($10,000)"
Some injured employees may now have access to some
treatment while the employer transmits the claim to the insurer or
while the insurer investigates the claim or makes up its mind (the
insurer has 90 days to make a decision to accept or reject).
-ACOEM guidelines In
the past the state did not have official guidelines for medical
treatment. Generally, workers have been entitled to treatment that is
reasonable, necessary and related to the industrial injury. In the 2003
reforms, the state has adopted the ACOEM guidelines promulgated by the
American College of Occupational and Environmental Medicine. Now
treatment "reasonably required to cure or relieve the injured workers
from the effects of his or her injury" has been defined by Labor Code
4600(b) to mean treatment that is based upon ACOEM. The ACOEM
guidelines are now under Labor Code 4604.5 "presumptively correct on
the issue of extent and scope of medical treatment."
Can
doctors use treatments not covered by ACOEM? Under Labor Code 4604.5
(a) ACOEM "may be controverted by a preponderance of the scientific
medical evidence establishing that a variance from the guidelines is
reasonably required to cure or relieve the injured worker from the
effects of his or her injury"
Does ACOEM apply to pre October
2003 injuries, including workers with old injuries who have judicial
awards that include "future medical" or who settled their cases with
open medical with the understanding they would get "lifetime medical"?
The 2003 reforms are silent on this, but across the state ACOEM is
being applied to older cases and as of 12/2004 there has been no
decision limiting the application of ACOEM to post October 2003
injuries or awards.
Will ACOEM always be the basis for
treatments? The state is supposed to adopt its own treatment
guidelines, but for now is using the ACOEM guidelines until the
Administrative Director implements other guidelines. Hearings were held
in San Francisco on 12/6/04.
-UTILIZATION REVIEW The 2003
reforms empowered insurers to set up "utilization review" ("UR"). UR
procedures of a carrier are to be provided upon request. Nothing in law
requires a claims examiner to use UR before authorizing a doctor's
treatment recommendations, but use of UR is at the insurer's option.
Most UR procedures allow for some in-house appeal if the treating
doctor wants to contact the UR physician to discuss the case.
What
are the UR time frames? For the vast majority of medical treatments,
the UR time frame is set forth in Labor Code 4610(g). The doctor must
request authorization in writing. A UR decision is to be made within 5
to 14 working days from the date of the medical treatment
recommendation and communicated to the treating doctor and to the
doctor and injured worker in writing within 2 business days.
Must
UR explain any recommendations to deny treatment certification? Labor
Code Section 4610(g)(4) says that when a response to a request for
treatment is to modify, delay, or deny it "shall include a clear and
concise explanation of the reasons for the decision, the criteria or
guidelines used, and the clinical reasons for the decision".
Does
UR apply to old (pre-reform) injures? Yes, but as noted above, there is
legal controversy over whether UR can apply ACOEM to chronic pain
injuries as opposed to "acute" injuries.
-MEDICAL PROVIDER NETWORKS Insurers/employers
can set up "medical provider networks" ("MPNs") after 1/1/05. The
regulations as drafted allow the insurers/employers to force workers
with old future medical awards and workers with existing doctor-patient
relationships into the MPNS, thus disrupting ongoing doctor-patient
relationships. The California Applicants' Attorneys Association has
filed suit to challenge the MPN regulations. Unless that suit is
successful, the word is that employers such as Safeway plan to force
workers with old medical awards into a MPN administered by Kaiser. As
of 12/04 is not clear what percentage of California employers will set
up MPNS and how quickly those will go into operation. The current MPN
regulations provide that there are four circumstances in which a worker
can NOT be pulled from the workers' treating doctor into an MPN. The
four exceptions are: 1) An acute condition that is, less than 90 days
since date of injury; 2) A serious chronic condition (after 1 year,
these can be moved into the MPN); 3) A terminal illness; 4) Where
surgery or a procedure has been authorized by the insurer and is to
occur within 180 days of the MPN coverage date.
Will ACOEM still
be the treatment standard even with the MPNS? Yes. Can an insurer still
use UR even though the worker is treating with the employer's MPN? Yes. What
if the worker does not like the MPN doctor? They will be entitled to 3
changes within the company doctor network, and then will be able to
solicit review by an independent medical review doctor to review
medical treatment decisions. The worker will have to submit an
application to the administrative director on a one page form for an
independent medical review. The procedure is set forth in Labor Code
Section 4616.4.
-TREATING DOCTOR PRESUMPTION REPEALED The opinion of the treating doctor is no longer presumed correct.
-LIMITATION ON CERTAIN TREATMENTS For
injuries after 1/1/04, the insurer is not required to provide for each
injury more than 24 chiropractic treatments, 24 physical therapy
sessions, and 24 occupational therapy visits. Many physicians
prescribe physical therapy in the early stages of injuries. Clearly
there are going to be many workers who eventually need surgery but who
have "used up" their allowed therapy before surgery through no fault of
their own. Will surgeons operate on a worker who is allowed no post
surgical therapy? Will group medical carriers or union health trust
funds pick up the tab for additional PT? Many serious questions remain.
Nothing in the law would prevent an insurer from voluntarily providing
for therapy beyond the limits, however.
-SPINAL SURGERY SECOND OPINION What
happens if the treating doctor recommends neck or back surgery and the
insurer objects? Labor Code 4062 now provides a special procedure for
disputing spinal surgery issues. If the employer objects within 10 days
of the treater's surgical recommendation, the parties may agree on an
AME (agreed upon examiner). If there is no agreement within the 10 day
time frame, the Administrative Director of the California Department of
Industrial Accidents can randomly select an examiner to prepare a
second opinion. The list of the examiners is still being compiled. If
the employee goes out and has the surgery on group medical insurance in
the meanwhile before the second opinion is completed the employer is
not liable for the costs of the surgery.
