Medical Treatment Under Workers' Compensation

Treatment is now designed as follows:  Labor Code Section 4600 (a) provides that Medical, surgical, chiropractic, acupuncture, and hospital treatment, including nursing, medicines, medical and surgical supplies, crutches, and apparatus, including orthotic and prosthetic devices and services, that is reasonably required to cure or relieve the injured worker from the effects of his or her injury shall be provided by the employer.  In the case of his or her neglect or refusal reasonably to do so, the employer is liable for the reasonable expense incurred by or on behalf of the employee in providing treatment.

Treatment is now limited per administrative guidelines.  Labor Code Section 4600(b) provides a definition of care as follows:  As used in this division and notwithstanding any other provision of law, medical treatment that is reasonably required to cure or relieve the injured worker from the effects of his or her injury means treatment that is based upon the guidelines adopted by the administrative director pursuant to Section 5307.27 or, prior to the adoption of those guidelines, the updated American College of Occupational and Environmental Medicine's Occupational Medicine Practice Guidelines.

The treatment guidelines may be rebutted pursuant to Labor Code Section 4604.5 which provide that the recommended guidelines set forth in the schedule shall be presumptively correct on the issue of extent and scope of medical treatment.  The presumption is rebuttable and may be controverted by a preponderance of the scientific medical evidence establishing that a variance from the guidelines is reasonably required to cure or relieve the injured worker from the effects of his or her injury. The presumption created is one affecting the burden of proof.

Limits on Therapy-Chiropractic, Occupational, and Physical-for Injuries occurring on or after 1/1/04.

Labor Code Section 4604.5(d) (1) Notwithstanding the medical treatment utilization schedule or the guidelines set forth in the American College of Occupational and Environmental Medicine's Occupational Medicine Practice Guidelines, for injuries occurring on and after January 1, 2004, an employee shall be entitled to no more than 24 chiropractic, 24 occupational therapy, and 24 physical therapy visits per industrial injury.    (2) This subdivision shall not apply when an employer authorizes, in writing, additional visits to a health care practitioner for physical medicine services.

Treatment for Injuries Not Covered by Guidelines

Labor Code Section 4604.5  (e) For all injuries not covered by the American College of Occupational and Environmental Medicine's Occupational Medicine Practice Guidelines or official utilization schedule after adoption pursuant to Section 5307.27, authorized treatment shall be in accordance with other evidence based medical treatment guidelines generally recognized by the national medical community and that are scientifically based.
 

Choice of Doctor: Limited by Medical Provider Networks

Labor Code Section 4600(c) Unless the employer or the employer's insurer has established a medical provider network as provided for in Section 4616, after 30 days from the date the injury is reported, the employee may be treated by a physician of his or her own choice or at a facility of his or her own choice within a reasonable geographic area.

Predesignation of Doctor: Exists with Limits

Labor Code Section 4600 (d) (1) If an employee has notified his or her employer in writing prior to the date of injury that he or she has a personal physician, the employee shall have the right to be treated by that physician from the date of injury if either of the following conditions exist: (A) The employer provides nonoccupational group health coverage in a health care service plan, licensed pursuant to Chapter 2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code.   (B) The employer provides nonoccupational health coverage in a group health plan or a group health insurance policy as described in Section 4616.7.   (2) For purposes of paragraph (1), a personal physician shall meet all of the following conditions: (A) The physician is the employee's regular physician and surgeon, licensed pursuant to Chapter 5 (commencing with Section 2000) of Division 2 of the Business and Professions Code. (B) The physician is the employee's primary care physician and has previously directed the medical treatment of the employee, and who retains the employee's medical records, including his or her medical history. (C) The physician agrees to be predesignated. (3) If the employer provides nonoccupational health care pursuant to Chapter 2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code, and the employer is notified pursuant to paragraph (1), all medical treatment, utilization review of medical treatment, access to medical treatment, and other medical treatment issues shall be governed by Chapter 2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code.  Disputes regarding the provision of medical treatment shall be resolved pursuant to Article 5.55 (commencing with Section 1374.30) of Chapter 2.2 of Division 2 of the Health and Safety Code. (4) If the employer provides nonoccupational health care, as described in Section 4616.7, all medical treatment, utilization review of medical treatment, access to medical treatment, and other medical treatment issues shall be governed by the applicable provisions of the Insurance Code. (5) The insurer may require prior authorization of any nonemergency treatment or diagnostic service and may conduct reasonably necessary utilization review pursuant to Section 4610. (6) The maximum percentage of all employees who are covered under paragraph (1) that may be predesignated at any time in the state is 7 percent.  (7) If any court finds that any portion of this subdivision is invalid or in violation of any state or federal law, then this subdivision shall be inoperative. (8) The division shall conduct an evaluation of this program and present its findings to the Governor and the Legislature on or before March 1, 2006.   (9) This subdivision shall remain in effect only until April 30,2007, and as of that date is repealed, unless a later enacted statute, that is enacted before April 30, 2007, deletes or extends that date.   
 

Medical Provider Networks: Medical Control By Carrier

Labor Code Section 4616(a) (1) provides on or after January 1, 2005, an insurer or employer may establish or modify a medical provider network for the provision of medical treatment to injured employees.  The network shall include physicians primarily engaged in the treatment of occupational injuries and physicians primarily engaged in the treatment of nonoccupational injuries.  The goal shall be at least 25 percent of physicians primarily engaged in the treatment of nonoccupational injuries.  The administrative director shall encourage the integration of occupational and nonoccupational providers.  The number of physicians in the medical provider network shall be sufficient to enable treatment for injuries or conditions to be provided in a timely manner.  The provider network shall include an adequate number and type of physicians, as described in Section 3209.3, or other providers, as described in Section 3209.5, to treat common injuries experienced by injured employees based on the type of occupation or industry in which the employee is engaged, and the geographic area where the employees are employed.    (2) Medical treatment for injuries shall be readily available at reasonable times to all employees.  To the extent feasible, all medical treatment for injuries shall be readily accessible to all employees.  With respect to availability and accessibility of treatment, the administrative director shall consider the needs of rural areas, specifically those in which health facilities are
located at least 30 miles apart.
 

Injured Workers' Rights Under Medical Provider Networks

Labor Code Section 4616.3(a) provides when the injured employee notifies the employer of the injury or files a claim for workers' compensation with the employer, the employer shall arrange an initial medical evaluation and begin treatment as required by Section 4600.    (b) The employer shall notify the employee of his or her right to be treated by a physician of his or her choice after the first visit from the medical provider network established pursuant to thisarticle, and the method by which the list of participating providers may be accessed by the employee.    (c) If an injured employee disputes either the diagnosis or the treatment prescribed by the treating physician, the employee may seek the opinion of another physician in the medical provider network. If the injured employee disputes the diagnosis or treatment prescribed by the second physician, the employee may seek the opinion of a third physician in the medical provider network.    (d) (1) Selection by the injured employee of a treating physician and any subsequent physicians shall be based on the physician's specialty or recognized expertise in treating the particular injury or condition in question.    (2) Treatment by a specialist who is not a member of the medical provider network may be permitted on a case-by-case basis if the medical provider network does not contain a physician who can provide the approved treatment and the treatment is approved by the employer
or the insurer.

Utilization Review

Comment: Utilization Review may now be used to limit Injured Workers treatment.  Now, workers are tantamount to being placed in an HMO setting where their treatments are limited by guidelines in lieu of treating you as an individual.  There are certain deadlines which must be followed by the Carriers under Utilization Review.  If there is failure to comply with the deadlines, a worker may be able to defeat the usage of the review.

Labor Code 4610 provides (a) For purposes of this section, "utilization review" means utilization review or utilization management functions that prospectively, retrospectively, or concurrently review and approve, modify, delay, or deny, based in whole or in part on medical necessity to cure and relieve, treatment recommendations by physicians, as defined in Section 3209.3, prior to, retrospectively, or concurrent with the provision of medical treatment services pursuant to Section 4600.
   (b) Every employer shall establish a utilization review process in compliance with this section, either directly or through its insurer
or an entity with which an employer or insurer contracts for these services.
   (c) Each utilization review process shall be governed by written policies and procedures.  These policies and procedures shall ensure
that decisions based on the medical necessity to cure and relieve of proposed medical treatment services are consistent with the schedule
for medical treatment utilization adopted pursuant to Section 5307.27.  Prior to adoption of the schedule, these policies and
procedures shall be consistent with the recommended standards set forth in the American College of Occupational and Environmental
Medicine Occupational Medical Practice Guidelines.  These policies and procedures, and a description of the utilization process, shall
be filed with the administrative director and shall be disclosed by the employer to employees, physicians, and the public upon request.
   (d) If an employer, insurer, or other entity subject to this section requests medical information from a physician in order to
determine whether to approve, modify, delay, or deny requests for authorization, the employer shall request only the information
reasonably necessary to make the determination.  The employer, insurer, or other entity shall employ or designate a medical director
who holds an unrestricted license to practice medicine in this state issued pursuant to Section 2050 or Section 2450 of the Business and
Professions Code.  The medical director shall ensure that the process by which the employer or other entity reviews and approves,
modifies, delays, or denies requests by physicians prior to, retrospectively, or concurrent with the provision of medical
treatment services, complies with the requirements of this section. Nothing in this section shall be construed as restricting the
existing authority of the Medical Board of California.
   (e) No person other than a licensed physician who is competent to evaluate the specific clinical issues involved in the medical
treatment services, and where these services are within the scope of the physician's practice, requested by the physician may modify,
delay, or deny requests for authorization of medical treatment for reasons of medical necessity to cure and relieve.
   (f) The criteria or guidelines used in the utilization review process to determine whether to approve, modify, delay, or deny
medical treatment services shall be all of the following:    (1) Developed with involvement from actively practicing
physicians.    (2) Consistent with the schedule for medical treatment utilization adopted pursuant to Section 5307.27.  Prior to adoption of the
schedule, these policies and procedures shall be consistent with the recommended standards set forth in the American College of
Occupational and Environmental Medicine Occupational Medical Practice Guidelines.
   (3) Evaluated at least annually, and updated if necessary.   (4) Disclosed to the physician and the employee, if used as the
basis of a decision to modify, delay, or deny services in a specified case under review.   (5) Available to the public upon request.  An employer shall only be required to disclose the criteria or guidelines for the specific procedures or conditions requested.  An employer may charge members of the public reasonable copying and postage expenses related to disclosing criteria or guidelines pursuant to this paragraph.
Criteria or guidelines may also be made available through electronic means.  No charge shall be required for an employee whose physician's
request for medical treatment services is under review.    (g) In determining whether to approve, modify, delay, or deny
requests by physicians prior to, retrospectively, or concurrent with the provisions of medical treatment services to employees all of the
following requirements must be met:    (1) Prospective or concurrent decisions shall be made in a timely
fashion that is appropriate for the nature of the employee's condition, not to exceed five working days from the receipt of the
information reasonably necessary to make the determination, but in no event more than 14 days from the date of the medical treatment recommendation by the physician.  In cases where the review is retrospective, the decision shall be communicated to the individual who received services, or to the individual's designee, within 30 days of receipt of information that is reasonably necessary to make this determination.    (2) When the employee's condition is such that the employee faces an imminent and serious threat to his or her health, including, but not limited to, the potential loss of life, limb, or other major bodily function, or the normal timeframe for the decision making process, as described in paragraph (1), would be detrimental to the employee's life or health or could jeopardize the employee's ability to regain maximum function, decisions to approve, modify, delay, or deny requests by physicians prior to, or concurrent with, the provision of medical treatment services to employees shall be made in a timely fashion that is appropriate for the nature of the employee's condition, but not to exceed 72 hours after the receipt of the information reasonably necessary to make the determination.
   (3) (A) Decisions to approve, modify, delay, or deny requests by physicians for authorization prior to, or concurrent with, the
provision of medical treatment services to employees shall be communicated to the requesting physician within 24 hours of the
decision.  Decisions resulting in modification, delay, or denial of all or part of the requested health care service shall be
communicated to physicians initially by telephone or facsimile, and to the physician and employee in writing within 24 hours for
concurrent review, or within two business days of the decision for prospective review, as prescribed by the administrative director.  If the request is not approved in full, disputes shall be resolved in accordance with Section 4062.  If a request to perform spinal surgery is denied, disputes shall be resolved in accordance with subdivision (b) of Section 4062.
   (B) In the case of concurrent review, medical care shall not be discontinued until the employee's physician has been notified of the decision and a care plan has been agreed upon by the physician that is appropriate for the medical needs of the employee.  Medical care provided during a concurrent review shall be care that is medically necessary to cure and relieve, and an insurer or self-insured
employer shall only be liable for those services determined medically necessary to cure and relieve.  If the insurer or self-insured
employer disputes whether or not one or more services offered concurrently with a utilization review were medically necessary to
cure and relieve, the dispute shall be resolved pursuant to Section 4062, except in cases involving recommendations for the performance
of spinal surgery, which shall be governed by the provisions of subdivision (b) of Section 4062.  Any compromise between the parties
that an insurer or self-insured employer believes may result in payment for services that were not medically necessary to cure and
relieve shall be reported by the insurer or the self-insured employer to the licensing board of the provider or providers who received the
payments, in a manner set forth by the respective board and in such a way as to minimize reporting costs both to the board and to the
insurer or self-insured employer, for evaluation as to possible violations of the statutes governing appropriate professional
practices.  No fees shall be levied upon insurers or self-insured employers making reports required by this section.
   (4) Communications regarding decisions to approve requests by physicians shall specify the specific medical treatment service
approved.  Responses regarding decisions to modify, delay, or deny medical treatment services requested by physicians shall include a
clear and concise explanation of the reasons for the employer's decision, a description of the criteria or guidelines used, and the
clinical reasons for the decisions regarding medical necessity.
   (5) If the employer, insurer, or other entity cannot make a decision within the timeframes specified in paragraph (1) or (2)
because the employer or other entity is not in receipt of all of the information reasonably necessary and requested, because the employer
requires consultation by an expert reviewer, or because the employer has asked that an additional examination or test be performed upon
the employee that is reasonable and consistent with good medical practice, the employer shall immediately notify the physician and the
employee, in writing, that the employer cannot make a decision within the required timeframe, and specify the information requested
but not received, the expert reviewer to be consulted, or the additional examinations or tests required.  The employer shall also
notify the physician and employee of the anticipated date on which a decision may be rendered.  Upon receipt of all information reasonably
necessary and requested by the employer, the employer shall approve, modify, or deny the request for authorization within the timeframes
specified in paragraph (1) or (2).    (h) Every employer, insurer, or other entity subject to this section shall maintain telephone access for physicians to request authorization for health care services.
   (i) If the administrative director determines that the employer, insurer, or other entity subject to this section has failed to meet
any of the timeframes in this section, or has failed to meet any other requirement of this section, the administrative director may
assess, by order, administrative penalties for each failure.  A proceeding for the issuance of an order assessing administrative
penalties shall be subject to appropriate notice to, and an opportunity for a hearing with regard to, the person affected.  The
administrative penalties shall not be deemed to be an exclusive remedy for the administrative director.  These penalties shall be
deposited in the Workers' Compensation Administration Revolving Fund.