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A Change In Perspective: Settlement Of Future Medical Benefits

As I have alluded to in previous blog articles, the process an injured worker in California must go through in order to access medical care for their Workers' Compensation case, has become a maze of tedious regulations and timelines. It seems that the employer and insurance carriers’ “due process” rights are being given a greater priority than simply providing medical care to injured workers.

Easily 20% of my time (and probably 35% of my staff’s time) is now spent dealing with Utilization Review(s) (UR) denying our clients access to medical care. Before 2013, we had to go to a Qualified Medical Evaluator (QME) from a Panel of three doctors issued by the Division of Workers’ Compensation Medical Unit in Oakland, California. That process would ordinarily take up to three months and then we might still need to go to a hearing which would take another one to two months. In a word, maddening.

IMRIn the latest “reform” of the Workers’ Compensation laws near the end of 2012, the Panel QME process was eliminated for deciding “medical necessity” disputes (i.e., Should the injured worker get the treatment his treating doctor prescribed or not?). Instead, a new process called Independent Medical Review (IMR) has been put in place. IMR is conducted by a company called Maximus, a large organization that has been doing reviews of medical-necessity disputes for the federal government and private health insurers for many years. The reality of this new process is:

  • The name of the doctor doing the review is not disclosed.

  • There is almost no opportunity to appeal an adverse IMR decision (which upheld the UR decision to deny the injured worker the care his doctor prescribed).

  • Even if you do appeal—and manage to prevail—all that happens is that your issue is put through the IMR process all over again with a different reviewing doctor.

  • The injured worker is “stuck” with that denial of medical care for 1 year, unless there has been a material change in circumstances.

It appears that at least 70% of the UR denials of medical treatment are being UPHELD by the IMR process. In my experience handling Workers' Compensation cases in Orange County, the percentage is even higher.

For more than 30 years Workers’ Compensation practice, I have generally urged my clients to hold on to their rights for future medical care under the Workers’ Compensation system and not settle those rights (i.e., “sell their rights to future medical”). Because of this latest IMR process, my advice has evolved. There are still some clients with medical needs that have little likelihood of coverage through other means (e.g., Medicare). For them, I believe it’s prudent to retain their rights to future medical in Workers’ Compensation—despite the problems we see with the IMR process.

My Opinion

In general, my opinion now is: Settle the future medical. Get what you can out of the Workers’ Compensation carrier or claims administrator and look for alternative means for medical coverage outside of the Workers’ Compensation system. The Workers’ Compensation system, especially with respect to current and future medical care, has been reduced to a farce.

The only rational approach is to get out of the Workers’ Compensation system as quickly as possible. There is little, if any, advantage to remain in the system as currently constituted for your future medical care.


NOTICE: Making a false or fraudulent Workers' Compensation claim in Orange County is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.

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