Injured Workers Face Stacked Deck During Workers' Comp Appeals Process, Critics Say

Independent medical reviewers rarely overturn denials of treatment for injured workers, an analysis by the NBC Bay Area Investigative Unit has found.

This is Part III of an NBC Bay Area investigation into California’s workers’ compensation system. Click here to see Part I. Click here to see Part II.

Injured workers face an uphill, long-odds battle if they want to appeal the denial of medical care through California’s workers’ compensation system, state data shows.

Since reforms made in 2013 under Senate Bill 863, injured workers can no longer appeal treatment denials in front of a judge. Now, the state contracts with a private, for-profit corporation that reviews appeals under a process called “Independent Medical Review.” The company pays anonymous doctors, who have never examined the patient in person, to make those decisions based on a standard set of guidelines.

Patients don’t stand much of a chance under the new system, the data shows. Between 2013 and 2015, injured workers contested almost 600,000 denials of medical treatment. Those denials were upheld nearly 90 percent of the time when reviewed on appeal by independent medical review doctors.

What that number means, though, depends on who you ask.

Critics of the system point to that figure as evidence the appeals process is one sided -- simply rubberstamping the denial of treatment for injured workers. But those who say the system is working as intended have a different take. The fact that only one in every ten cases is overturned under appeal, they say, proves that correct treatment decisions are being made at each previous step in the process.

For Joan Dismuke, though, the debate is far more personal. A workplace injury in 2003 would mark the beginning of a long descent into chronic pain and depression for her daughter Lorrie Mays.

Mays would end up taking her own life in February, the same week Independent Medical Review upheld the denial of the only treatment Dismuke said brought her daughter any relief.

“I think everybody has a limit to what they can take,” Dismuke said. “[Workers’ comp] provided a lot of care for Lorrie. She just needed more.”

Mays was working as a nurse for the Fresno County Health Department helping women with at-risk pregnancies when she slipped on a flight of stairs during a house call. She went through surgery, but continued to have chronic pain in her legs and lower back.

Lorrie Mays

“Chronic pain is day in and day out,” Dismuke said. “And at some point, someone who develops chronic pain, which is unrelenting, develops depression.”

Workers’ compensation medical guidelines do in fact acknowledge a link between depression and chronic pain resulting from a work-related injury. It’s why anti-depressants can be prescribed by workers’ comp doctors. But for Mays, whose fun-loving personality would disappear after the injury, anti-depressants were ineffective.

So in 2014, her doctor turned to a treatment called Transcranial Magnetic Stimulation (TMS), a procedure used to treat depression in patients resistant to medication. Mays’ medical records show the treatment seemed to be effective.

But when her doctor requested another round of treatment in September, it was denied.

The denial stated the following: “The new criteria for proceeding with this treatment includes failure of multiple medications and failure of a trial of electroconvulsive therapy. The records do not clearly establish that the patient has recently failed a trial of electroconvulsive therapy. Further, the guidelines advise that a standard course of treatment includes 30 treatments. The patient has far exceeded this quantity.”

Mays appealed the denial, asking the state for an Independent Medical Review. In February, the doctor reviewing her appeal upheld the denial. Lorrie’s family was at the beach when she received the decision letter.

When Dismuke returned home, she found a note on the front door written by her daughter. It said to call the police – and not to go in the backyard.

“I knew instantly what it meant,” Dismuke said.

Dismuke would find other letters written by her daughter that spoke to the pain and frustration she endured trying to get the medical care she hoped would make her better.

“It’s been 12-plus years of hell,” Mays wrote. “The past several days have been so exhausting. I’m worn out, drained, depleted, gone.”

“We treat our employees while injured worse than we treat our veterans,” Mays wrote in another letter.

Mays’ case is extreme. But critics of the workers’ comp system say the implementation of independent medical review stacked the deck against injured workers.

A company called Maximus Federal Holdings won the contract to provide independent medical review for the state in 2013. The corporation is paid anywhere between $345 and $515 to review a case. It’s paid for by the injured worker’s employer or their employer’s insurance company.

The contract has been lucrative for Maximus. A study by the Workers’ Compensation Insurance Ratings Bureau found treatment denials are being appealed far more than expected.

“The number of IMRs filed in 2014 and 2015 was three times higher than initial WCIRB projections,” the report states.

Although Maximus received nearly 500,000 appeal requests over that time period, doctors employed by the company determined 90 percent of those requests were not medically necessary and upheld the original denials.

But who those doctors are is a controversy in itself. Their names are confidential and there is currently no requirement they have to be licensed to practice medicine in California. An analysis of state data found 39 percent of IMR doctors who reviewed cases in 2014 were licensed out of state. In 2015, 29 percent were out of state.

IMR doctors never actually examine the patient, either. Instead, they’re provided a slice of that worker’s medical history and make a determination using a standard set of guidelines.[[391233681, C]]

“To have some anonymous person review your need for medical care and say you don’t need it – there’s zero transparency in that,” said Diane Worley, policy director for the California Applicants’ Attorneys Association.

Worley, whose organization advocates for injured workers, says the move to IMR was made to help contain costs, but the pendulum has swung too far.

“If the treatment the doctor is requesting isn’t the right treatment, the goal should be, ‘well, what is the right treatment?’” Worley said.

All that money going to Maximus, Worley said, means less money being spent on medical care for workers.

“The money that was going to treatment is now going to this bureaucratic nightmare of paper and review,” she said.

Maximus declined interview requests for this story, as did officials with the Department of Industrial Relations, the state agency that oversees workers’ comp.

But reports published by the insurance industry show the 2013 reforms have resulted in significant savings of nearly $800 million across the system. The WCIRB says those savings are beginning to translate into lower premiums for employers, which had been rising steadily for years.

And in July, a state report emphasized the continued need to make medical decisions based on evidence-based guidelines. By encouraging treatment that’s proven to work and discouraging treatment that’s ineffective, the report states fewer resources are wasted and injured workers get better care.

Dismuke, though, says those guidelines don’t fit every patient. They didn’t fit her daughter Lorrie, she said, and the consequences were devastating.

“It’s always bad to be the atypical patient,” Dismuke said. “I don’t care what field you’re in. If you present differently than the norm, you are liable to not get the treatment you need. I think here, she didn’t fit the profile of what they expected treatment to have to be.”

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