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SB 863 and the
Chronic Pain Dilemma
The four part Los Angeles Times
investigative report that began November 11, 2012 “Dying for relief” by
Scott Glover and Lisa Girion should be required reading for anyone involved in
workers’ compensation claims and/or treatment.
The first part of the series: “Legal
drugs, deadly outcomes” begins “prescription overdoses kill more people
than heroin and cocaine” and begins:” Terry Smith collapsed face-down in a pool
of his own vomit; Lynn Blunt snored loudly as her lungs slowly filled with
fluid; Summer Ann Burdette was midway through a pear when she stopped breathing;
Larry Carmichael knocked over a lamp as he fell to the floor; Jennifer Thurber
was curled up in bed, pale and still, when her father found her; and Karl
Finnila sat down on a curb to rest and never got up.
Section 1(d) of Senate Bill (“SB”) 863
could have come right out of the Los Angeles Times article: “the current system
of resolving disputes over the medical necessity of requested treatment is
costly, time consuming, and does not uniformly result in the provision of
treatment that adheres to the highest standards of evidence-based medicine,
adversely affecting the health and safety of workers injured in the course of
employment.” Boy is that ever the truth.
As a senior Physiatrist and Pain
Specialist in California I have been involved in workers’ compensation for a
long time and have seen numerous reforms. The question of this reform is: will
SB 863 which is designed to provide more access to care more expeditiously stem
the epidemic of failure to properly diagnose and treat patients with the signs
and symptoms of chronic pain as has be set forth in the Chronic Pain Medical
Treatment Guidelines of the Medical Treatment Utilization Schedule
(“MTUS”).
The MTUS (Labor Code (“LC”) §5307.27) has been around since the 2004
reforms, but frankly, it has been very poorly understood and/or utilized by
many. As to chronic pain it is simple common sense: if the patient’s condition
can be identified early as headed towards becoming chronic then get a
multidisciplinary evaluation as soon as possible. If the patient has already
developed the stigmata of chronic pain, where the traditional biomedical model
alone has failed them, get that patient evaluated and if appropriate into a
Functional Restoration Program (“FRP”). It is no different than seeing a leak in
your roof and doing nothing about it: what do you think will eventually
happen?
Now we have entered a new stage of
workers’ compensation as a result of SB 863. Effective July 1, 2013 Panel
Qualified Medical Examiner (“pQME”) or Agreed Medical Examiner (“AME”) and even
a Workers’ Compensation Judge will not be able to resolve a treatment dispute.
Instead LC §4610.5 places treatment resolution
disputes in the hands of an Independent Medical Reviewer (“IMR”) physician who
will not see the patient and who will be anonymous to both the patient and the
insurance company. How will that affect chronic pain treatment?
I
spoke recently with a respected senior primary care physician (“PTP”) who stated
that he sees a “90% denial rate” via the utilization review (“UR”) process. He
describes the payers/employers in vitriolic terms. I have talked to other
treating physicians and while the denial rate as they perceive it is not so
high, many of them feel that the UR process does not work in the favor of the
injured worker with a high denial rate which is egregious from their
perspective. Will this change as a result of SB 863? Perhaps. Perhaps not.
Let’s examine one possible scenario. A
typical orthopedic of physiatry practice may be 30% workers’ compensation, some
more, some less and some 100% workers’ compensation. Various limitations in SB
863 will substantially decrease the availability of treatment on a lien basis.
So if treatment is denied then patient may have nowhere to go unless a timely
and proper IMR request is filed. The doctor has the right to act as an advocate
for the injured worker, but the responsibility, obligation and right to file the
IMR belongs exclusively to the injured worker. Now there will be no more
treatment resolution by the pQME or AME (for all injuries as of 7/1/13), who
have an ability to see and evaluate the injured worker.
In
the ideal world one would hope the doctor in receipt of a UR denial would be
right there as an advocate for the injured worker in their IMR appeal. But let’s
look at LC §4616.1(d) which hold in part: “an employer
or insurer shall have the exclusive right to determine the members of their
network.” Will doctors challenge the UR for the sake of the injured worker and
risk being excluded from the MPN (and therefore effectively from workers’
compensation)? Time will tell. But one thing is certain: This places even the
very best of doctors – and the most ethical – to at the very least face making a
choice.
In
our practice at Feinberg Medical Group (“FMG”), despite respect from the defense
and applicant community, we are challenged daily with denial of care requests
for routine treatment as well as for our FRP. We are experts at FMG and
carefully document and explain our recommendations following the MTUS Chronic
Pain Medical Treatment Guidelines. These Guidelines came from work done by the
DWC Medical Evidence
Evaluation Advisory Committee (“MEEAC”) and partially from the Official
Disability Guidelines (“ODG”).
I
am regularly sought out as a speaker on these topics by both defense and
applicant stakeholders. It seems so incongruous to hear from the carrier about
the high (some even using the word “draining”) costs of legacy claims for
patients with chronic pain when if earlier in the claim they used the MTUS to
identify early risk factors and reduce (and sometimes even stop) this “drain”
before it starts. The law regarding the MTUS has been in place since SB 228 in
2004. Other medical guidelines have been there since I became involved in
workers’ compensation. Common sense preceded my entry into the profession. But
from where I sit now purveying the past and looking to the future neither common
sense nor the laws in place have been the order of the day. Instead, here we go
again legislating what should have been known to all, and restating again what
has been the laws for years that is: You must address chronic pain as soon as
possible with a multi-disciplinary approach and cannot “kick the can down the
road hoping that chronicity will just disappear if ignored.
So
let’s look at the law regarding the MTUS:
· Recommended guidelines
set forth in the medical treatment utilization schedule shall adopted by the
administrative director pursuant to LC §5307.27;
· 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 LC §5307.27 (LC §4600(b):
· The MTUS established as
a result of LC §5307.27 is presumptively correct on the issue of extent and
scope of medical treatment as a matter of law (LC §4604.5):
· 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 LC §5307.27. (LC
§4610(c));
· UR denials or
modifications must be consistent with the schedule for medical treatment
utilization adopted pursuant to LC §5307.27 (LC §4610);
· Procedures governing
the determination of any disputed medical treatment issues by the IMR must be in
a manner consistent with LC §5307.27 (LC §4610.5).
The
hierarchy in resolving medical disputes by the IMR is such that if the need is
not established by the MTUS (8 CCR §9792.20 – 8 CCR §9792.26) the IMR must then go to peer
reviewed evidence based medicine. I am familiar with evidence-based medicine
guidelines and served as an Associate Editor on the ACOEM Chronic Pain
Guidelines Panel Chapter Update and also ongoing as a Medical Consultant to the
ODG.
The
MTUS clearly supports the functional restoration biopsychosocial model utilizing
an FRP - so there should be no need to proceed to ACOEM, ODG. Yet, UR
reflexively denies that which is in the MTUS and peer reviewed evidence based
medicine. Perhaps this is a problem of the industry where the “can is kicked
down the road” in hopes that the problem or the patient will go away in the face
of a denial. Such an institutional belief is one of the elements at the core of
the need for seemingly regular reforms. How about doctors, lawyers, claims
managers and adjusters stepping back and looking at the big picture? Think about
identifying those risk factors of chronic pain earlier and saving a life of
misery? Adjusters: wouldn’t it be nice to stem the growing cost of legacy claims
for medications and the inevitable compensable consequences? Lawyers: wouldn’t
it be nice to know the MTUS and get your client care established by LC
§4600? Society: It there not an over-riding
social policy that following the MTUS as enacted by LC §5307.27 will ultimately decrease workers’
compensation premiums for the employer and prevent at times unmentionable and
unnecessary suffering for the injured worker? May I stand up and say getting
both doctors and carriers to finally follow the MTUS would be the single biggest
reform in California history that could potentially save millions, if not
billions, of dollars. Isn’t that was SB 863 was supposed to be all about?
Until the MTUS is following by doctors and
UR departments, the process of getting authorization will remain time consuming,
problematic and a constant battle. Will SB 863 help or hinder us in getting the
treatment we recommend for our injured worker patients?
Despite my trepidations, I think that
SB863 and the reconstituted Division of Workers’ Compensation MEEAC can be a positive factor in getting
injured workers the care they need.
With that said, physicians will need to
modify their behavior somewhat with improved measurement and documentation of
treatment efficacy. Here is a guideline for reporting:
1. The physician needs to
provide a clear, legible and concise history and physical examination followed
by diagnoses. I urge avoiding electronic medical record (EMR) boilerplate
paragraphs.
2. The medical reporting
must contain documentation that the injured worker is educated about and
understands the diagnoses and that the goals of treatment are less discomfort,
improved function and staying at or returning to work.
3. The injured worker must
be educated to understand that medications are used to alleviate pain and other
symptoms but are not curative or a long term solution.
4. The reporting must
contain specific goals to be achieved by treatment which are understood and
agreed to by injured worker.
5. The report should
contain an explanation that the request/prescription for treatment is to achieve
and will result in a positive outcome (and therefore be efficacious) by way of
improved activities of daily living (ADLs) which are measured/documented at the
next visit.
6. The report should
provide an explanation that the request/prescription for treatment follows MTUS
or other Guidelines and is supported by evidence-based medicine or is otherwise
justified.
Here are some examples of how a physician
can explain the efficacy of a prescription for treatment:
a. Example 1: The
physician can explain that while a fitness center self-directed exercise program
is not mentioned in any guideline but evidence that such participation results
in increased ADLs, maintains staying at work and reduces use of medications is
clearly cost-effective and medically reasonable.
b. Example 2: The
physician requesting an epidural can explain that there has been a recent
deterioration in function and increased pain and lack of success with a
medication increase and physical therapy. An epidural is medically reasonable
given that the previous epidural provided six months of significant benefit by
way of increased ADLs, maintaining staying at work and reduced use of
medications.
How
does SB863 change the playing field?
The
IMR physician reviewer is anonymous but that individual is obligated to make
rational decisions based on the MTUS and other guidelines where appropriate. It
therefore behooves the prescribing physician to clearly identify how the
recommendation for treatment meets those guidelines. A “bullet-proof” report
would be one that clearly shows how the injured worker is appropriate for
treatment. I recommend developing a check off list for common problems you
encounter in your practice with reference to the MTUS and/or other essential
support.
Let’s take a look at authorization for a
functional restoration chronic pain program. The MTUS Chronic Pain Medical
Treatment Guidelines notes that there are a number of barriers to success which
may justify a more intensive functional restoration chronic pain program. These
include a negative relationship with the employer, a history of poor work
adjustment and satisfaction, a negative outlook about future employment, high
levels of psychosocial stress including pre-injury, ongoing litigation and anger
directed toward the employer/payer regarding utilization review denials, greater
smoking rates, the use of high dose opioids, and pretreatment pain levels. These
factors could be included in your check off list.
The
MTUS provides criteria for admission to a functional restoration program
including that a thorough evaluation has been accomplished (called a
multidisciplinary or interdisciplinary evaluation), documentation that previous
methods of treating chronic pain have been unsuccessful there is an absence of
other options likely to result in a significant clinical improvement, the
patient has a significant loss of the ability to function independently due to
the chronic pain condition, negative predictors of success have been addressed,
and most importantly the patient exhibits motivation to change, and is willing
to forgo secondary gains, including disability payments to effect this
change.
The
following is an example as to how I recommend obtaining authorization for a
functional restoration program.
An
FRP evaluation and treatment is recommended and requested for authorization. I
recommend including something like this in the Request for
Authorization:
“In accordance with the Medical Treatment
Utilization, I believe this patient should be evaluated to have treatment in a
Functional Restoration. This injured worker has become dysfunctional and has
developed a chronic pain syndrome. This patient is not able to manage their
chronic pain syndrome successfully and has become dependent on escalating
medications, the medical system and passive tools such as rest, ice or heat.
This injured worker has not responded well to past treatments including
injections, medication trials, surgery, chiropractic care and/or physical
therapy. This patient has become sedentary, deconditioned, limited by a fear of
re-injury and/or movement and shows poor body awareness. There is also evidence
for depressive symptoms and maladaptive coping, and this patient spends an
unusual amount of time resting. Sleep problems and sexual dysfunction are
present as well. This patient is also somatically focused.
I have carefully explained to this injured
worker the importance of reducing medications and becoming more functional and
there is clear agreement that there is motivation to change on the part of this
individual and a strong desire to return to work.”
Now we have all seen patients who go
downhill fast. They become dependent on family members; they lose their savings
and perhaps their home. They, in short lose hope. From the perspective of the
carrier this is an atomic bomb of costs about to go off if this situation cannot
be helped. All a claims manager has to do is look at their future medical costs
to know that I am right. Again, when it finally explodes the carrier calls it a
“legacy claim” and a “drain.”
I applaud the emphasis on the MTUS in SB
863. Over and over again the MTUS is laid out as the standard for both the
doctor and employers. I can assure all stakeholders if the MTUS is simply just
followed, as opposed to “kicking the can down the road” the next reform may not
have to begin with the language: “the current system of resolving disputes over
the medical necessity of requested treatment is costly, time consuming, and does
not uniformly result in the provision of treatment that adheres to the highest
standards of evidence-based medicine, adversely affecting the health and safety
of workers injured in the course of employment.”
Exercise is an important aspect of chronic pain management. However, the notion of movement to manage chronic pain seems counter-intuitive for many patients as movement typically leads to increased pain. Encouraging a person with chronic pain to increase their activity level is usually met with some level of resistance. This may be due to fear of increased pain, fear of re-injury, being unsure of what type of activity is appropriate for them, or perhaps the person is not sure where to start. These concerns are valid; therefore it is important that the patient be provided proper guidance. Physical therapy with a therapist that has pain management experience can provide education and instruction to assist in over-coming these barriers, allow the patient to progress their activity level safely and provide instruction on activity progression and active pain management skills. 
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