What is a pirate’s favorite part of California workers’ compensation?

• 

  Gregory Grinberg

  A) Labor Code 4662 (because of all the hooks and eye patches, etc.).
• B) Lien litigation (because of legalized piracy).
• C) IM arrrrrrr!

The answer is obviously C, but I would have also accepted U arrrrr.

Now that you’re done rolling your eyes at me, let’s take a look at how independent medical review is doing.

The California Workers' Compensation Institute has a new report on IMR, and the results are pretty favorable to the defense community. IMR volume peaked in 2018 but has steadily declined to an all-time low since the program started as part of SB 863. In 2022, there were 127,215 requests for IMR as compared to 184,735 requests in 2018. The cost of IMR is $345, so imagine the savings to defendants represented by the drop in IMR requests: almost $20 million.

And, of course, that’s just the cost of IMR alone, not to mention all the unnecessary treatment that defendants were not forced to pay for.

The other interesting statistic is the IMR uphold rate: 2022 saw an uphold rate of 91.1%, down from 92% the year before.

What does this mean? Well, as the system stands right now, odds are very high (as in 91.1% likelihood) that a utilization review determination will stand. That is why it is so important for defendants to conduct timely and technically effective UR of requests for authorization, which includes not only timely responses but also proper and timely communication of the results to the parties involved (applicant's attorney, requesting doctor, etc.).

What else does it mean? Sacramento sees a fortune of costs being avoided by employers and insurers and is working diligently to prevent those savings, or, at the least, curtail them as much as possible. Efforts are underway in Sacramento to require all UR physicians to not only be licensed in the relevant specialty as required for the RFA, but also to be licensed in California. 

There is clearly no purpose to this other than to make UR more expensive for employers by limiting the pool of physicians available to conduct UR. Likewise, as discussed previously here, Sacramento is attempting to increase temporary total disability for the 8.9% of IMR results that reverse the UR determination, extending TD beyond the 104-week cap for periods spent awaiting an IMR reversal. 

At present, there is little enough incentive for AAs to request IMR, let alone litigate any technical deficiencies in the IMR results, knowing that less than 10% of those decisions will be reversed. The prospect of an extra two months of TD will provide plenty of such incentive. 

SB 863 went into effect more than 10 years ago, and while it failed to eliminate Ogilvie explicitly, and, sadly, failed to eliminate Almaraz/Guzman as well, limiting the jurisdiction of the Workers' Compensation Appeals Board to reverse UR and instituting the IMR process is likely proving to be one of the biggest cost-saving measures for California’s employers.

Gregory Grinberg is managing partner of the Tobin Lucks office in Burlingame and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.