Independent medical review (IMR) is the largest change in California’s SB 863, which has been widely lauded as a “new and improved” workers’ compensation reform package. The new law addresses problems that arose out of the 2004 reforms by minimizing delays in medical treatment and improving access to care.
One of the many changes introduced in SB 863 is that it proposes to change the way medical disputes are resolved by introducing IMR.
California workers’ compensation reform: Independent medical review
In the old system, when there was a disagreement about medical treatment issues, each side attempted to obtain medical opinions favorable to its position, and then counsel for each side tried to convince a workers’ compensation judge based on this evidence what the proper treatment should be.
Paul Wolfe explained in a recent CER webinar: “Before, the way the process would work, is we would go through utilization review. There initially would be an opinion by a treating physician. These would then go through utilization review (UR). If there was a dispute over the UR decision, it would then go through the AME/QME process. If there was still a dispute, it would go to hearing, and judge, and possibly appeal. There was a ton of litigation and delay built into the process.” (AME = agreed medical examiner; QME = qualified medical examiner)
Under the old system, it typically took 9 to 12 months to resolve a dispute over the treatment needed for an injury. This system of “dueling doctors” with lawyers/judges making medical decisions has resulted in an extremely slow, inefficient process that many argue does not provide quality results. The IMR system, in contrast, is “designed to ensure that medical expertise is used to resolve medical disagreements.” Wolfe explained. “Now they’ve invoked the independent medical review, which is not a new process—this has been working in other legal forums for many years, and it’s been working well—but it is new to California workers’ comp.”
California workers’ compensation reform: Independent medical review implementation timetable
“Typically, the volume that IMR has been used in other forums has been much lower than the volume we see in the California workers’ compensation system. So that’s the big unknown – how are they going to ramp up the IMR vendors and providers to match the expected capacity of the California work comp system?” Wolfe explained.
To address this concern, the new law authorizes the administrative director to contract with an outside organization to conduct treatment reviews. It also phases the implementation in two stages. The new process of IMR applies immediately to all injuries occurring on or after January 1, 2013. IMR will apply to all UR decisions communicated to the requesting physician on or after July 1, 2013, regardless of the date of injury.
Because of the immediate implementation for injuries occurring this year, the state of California can contract with outside entities to provide the IMR process to ramp up on time.
California workers’ compensation Reform: independent medical review disputes?
How does the IMR process work?
IMR can only be requested by an injured worker following a denial, modification, or delay of a treatment request through the utilization review (UR) process. An injured worker can be assisted by an attorney or by his or her treating physician in the IMR process.
Previously we would use doctors the parties chose (Qualified Medical Examiners and Agreed Medical Examiners – QME and AME) – but now we can’t. The QME or AME cannot comment on medical treatment recommendations or objections to UR determinations; all disputes concerning UR must go through IMR.
Additionally, if the UR vendor authorizes something, IMR does not apply. As such, employers and insurance carriers cannot request review of treatment authorizations. You can, however, appeal the IMR determination, but there’s a limitation. The only right to appeal an IMR determination is on the basis of fraud, conflict of interest, discrimination based on a protected class or mistake of fact. In short, employers and carriers can no longer dispute the medical determination of the IMR doctor for any other basis (such as the reviewer’s underlying medical decision-making—which cannot be overturned by a judge).
The remedy, if an appeal is granted, is referral to a different reviewer for another review.
The above information is excerpted from the webinar “Workers’ Comp Reforms: How S.B. 863 Will Affect Your Workplace; Get Prepared Now.” To register for a future webinar, visit CER webinars.
Paul Wolfe is an attorney in the greater San Francisco offices of Grancell, Lebovitz, Stander, Reubens and Thomas. He is an experienced workers’ comp defense attorney.