A decision out of the Louisiana Fifth Circuit Court of Appeal (Gretna) held last week that the workers’ comp judge was correct in determining that a report authored by a UR physician who is not licensed in Louisiana is not “competent evidence.” We spoke to Greg Unger, the attorney representing the claimant, plus several other local comp experts, to get their take on the case.
According to court documents, claimant Travis Wilson injured his neck, back and shoulder after falling from a ladder while working for Broadmoor LLC on January 6th, 2013. Conservative treatment with an orthopedist failed to relieve his pain and Wilson was referred to a neurosurgeon (Dr. Gabriel Tender) to determine surgical options; Wilson continued with physical therapy during this time. On February 27th, 2014, Dr. Tender filed a 1010 for an L4 laminectomy. Utilization review physician Dr. Bachman rejected the request and Dr. Tender appealed to the Medical Director, who upheld the denial.
On April 28, 2014, the workers’ compensation judge found that Dr. Bachman was not licensed to practice medicine in Louisiana and thus, his utilization review was not “competent” evidence to determine medical necessity. Further, the workers’ compensation judge reversed the Medical Director’s denial on the basis that “the medical evidence submitted … constitutes clear and convincing evidence that the opinion of the Medical Review Director denying authorization for the L4 laminectomy…is manifestly erroneous.” Finally, the workers’ compensation judge ordered Broadmoor to authorize and pay for the requested surgery and necessary medical treatment “attendant thereto.” The Fifth Circuit affirmed last week and awarded additional attorneys fees.
Unger was “pleased” with the appellate ruling, and noted that decisions like these are clarifying important aspects of the Medical Treatment Guidelines and how they are meant to be applied. “The Fifth Circuit didn’t really flesh this out in the opinion but, the Louisiana State Board of Medical Directors has a statement of position [see documents below article text] that directly addresses this issue of doctors outside of Louisiana and unlicensed in Louisiana, making determinations about medical necessity,” Unger explained. “That statement has been around for a long time. In my opinion, the Medical Director should be taking that position into account.”
For his part, John Kocke, RN, and founder of AMC Resources, a local utilization review company, found the ruling to be a troubling reflection of poor claims handling. “The OWC reviewed medicals that were five months older than the date of submission. This is a huge problem that is on the hands of the providers, the carrier and the adjuster. Current medicals should have been supplied, including diagnostic studies. This is the most egregious part of the findings, and if the court had held that the [documentation submitted to the Medical Director] was old, then I would not have had any problem with it, providing the documentation wasn’t withheld on purpose by the plaintiff.”
In addition to the outdated medical records, Kocke cited the real-world application of UR as a factor that went unacknowledged in the ruling. “Almost all [utilization] reviews are actually done by RNs, with physicians sometimes signing off on ‘complicated’ cases,” Kocke explained. “The [Medical Treatment Guidelines] are pretty specific and UR nurses are trained to understand them. The whole purpose of the Guidelines was to introduce evidence-based medicine into our system, so as to catch up with the rest of the country. The OWC medical director is the arbiter of denials for treatment, and as long as their review and decision is based on the most up to date medical treatment, that should carry the most weight.”
Somewhat contrary to Kocke, Unger and his fellow attorney at Workers’ Compensation LLC, Greg Hubachek, believe that the UR process should become hyper-localized and physician and specialist-driven, with the aid of this decision.
“I’m getting the impression that the judges are tired of the utilization review processes being bogged down in bureaucracy, where the Medical Director and the UR physician have different incomplete records and we have doctors in Wyoming deciding what a patient they’ve never seen in Louisiana needs to treat their injury,” Unger said. “This should be a wake up call for insurance companies that are buying these opinions in order to deny medical treatment.”
Hubachek echoed Unger’s sentiment about eliminating unnecessary bureaucracy. “This is something we can all get behind because if this ruling is followed, and we start using Louisiana UR physicians only, it is going to improve the system and get treatment to injured workers faster. These doctors are familiar with the medical treatment schedule here, which is unique to our state, and they can find each other through the professional organizations that represent their respective specialties.”
Additional attorneys on the claimant side were also bolstered by the ruling. Steve Wanko, of the Wanko Law Firm joked, “My initial reaction – no longer do my clients have to be told by a gynecologist in Florida that they do not have a back injury or don’t need treatment.” He continued: “But on a more serious note, slowly but surely, the courts are establishing the necessary policy needed for the Medical Treatment Guidelines to work properly and efficiently, as they were originally sold to the public. More policy is needed but we are making progress.”
See the documents below for further information about the case.
Image Credit: Louisiana Fifth Circuit Court of Appeal eCourt