Workers Comp Zone


The California Insurance Guarantee Association has dropped it its Petition for a Writ filed in the California Court of Appeal, 3rd District in the case CIGA VS. WCAB (Smith).

Pursuant to CIGA’s recent request, the 3rd District issued a March 18, 2015 order that “Pursuant to petitioner’s written request, the petition for writ of review filed on November 3, 2014, is dismissed.”

CIGA also recently “pulled back” in CIGA v. WCAB (Mercado). Both cases involved the question of medical necessity for home access modifications for severely injured workers.

In both cases, requested home modifications requested by treating physicians had gotten entangled in California’s utilization review (UR) system. In Mercado, the workers’ comp judge decided to override numerous denials under the Dubon I case. Then came Dubon II, limiting the scope of WCAB review of IMR denials to timeliness issues.

Mr. Mercado was a quadriplegic. After news media interest in his story CIGA elected to resolve the case and withdraw the writ petition that had been filed with and granted by the California Court of Appeals, 2nd District.

The Smith case also involved a pre-Dubon UR. CIGA contended that the WCAB exceeded its jurisdiction when it determined that despite a timely UR that the UR was invalid, thereby awarding Mr. Smith home modifications for a wheelchair accessible bathroom.

Smith had had a medical award for treatment for over 10 years and had been provided a wheelchair, an electric scooter and handicap access vehicle for over many years. Smith was also affected with syncope episodes causing him to pass out at random times.

The item being sought was a handicapped accessible bathroom. The concern was that if he passed out in the bathroom it would be difficult to extract his 6’3, 310 pound frame.

Apparently there had been episodes where he had fallen, requiring EMT help to deal with the situation.

Despite the fact that Smith already had a wheelchair, the necessity of which was not in issue, the UR reviewer chose to question the necessity for the wheelchair. Without a wheelchair there would be no need for a bathroom modification.

Essentially the UR reviewer ignored the question presented and plunged into an analysis of the underlying need for durable medical equipment. The WCJ concluded that “Essentially the reviewer did not do his job. The integrity of the review was not just impaired; it did not occur.”

The workers’ compensation judge also noted that :

“As an additional problem with the review, Dr. Hahn made a determination of the medical necessity of the chair based upon his opinion that there was no diagnosis that supports it. It looks as though he was essentially opining that there is no connection between the industrial injury and the need for the chair. That conclusion is outside the scope of utilization review.”

So much for the concept of quality UR to make sure that workers receive appropriate treatment.

Presumably CIGA withdrew the writ petitions in Mercado and Smith to avoid public relations problems or in interest of “doing the right thing” for Mr. Smith and Mr. Mercado.

These cases take on some importance now, however, as there has been more outside media scrutiny of workers’ comp after the ProPublica/NPR investigative series.

California Labor Secretary David Lanier recently sent a letter to ProPublica which claimed in part that the 2012 comp reforms did not allow a carrier to renege on a previously approved treatment plan.

In Smith’ s case the requested home modifications were an outgrowth of his wheelchair needs, but the UR reviewer essentially denied the request by suggesting the carrier renege on a previously approved treatment plan (i.e. the wheelchair).

The Smith case clearly indicates that the situation facing disabled workers is more complicated than Lanier suggests.

Smith was forced to run a legal gauntlet to deal with bathroom access for his wheelchair. And had the Smith case been tried after the SB 863 -mandated result in Dubon II, Smith might have had to go through many additional hoops to get his home modifications approved.

In coming posts I’ll examine other examples of how carriers have treated previously approved treatment plans under the 2012 reforms.

The record needs to be set straight.

Julius Young