Almost every Workers’ Compensation Medicare Set-Aside (WCMSA) includes future diagnostic imaging studies, usually x-rays and MRIs. For most work injuries, and especially orthopedic ones, diagnostic imaging studies are commonly done early in treatment. They may be done on an emergent basis. And it is not unusual for repeat studies to be conducted for more serious and/or ongoing conditions. This article will provide an overview of diagnostic imaging allocation per the WCMSA Reference Guide, Official Disability Guidelines, and other physician and standard of care guidelines as well as strategies for allocating future imaging studies.
The WCMSA Reference Guide Provisions
Section 9.4.3 WCRC Review Considerations of the WCMSA Reference Guide (v.3.1 May 2020) states “[t]he WCRC team reviews all of the submitted records and attempts to determine the future care required for the individual claim, taking into consideration the claimant’s specific condition, other comorbidities, and the claimant’s past use of healthcare services. Reviewers use evidence-based rationale for the determination, taking into account both published guidelines and current peer-reviewed medical literature.” Later, in the same section, the Reference Guide provides “[t}he WCRC considers both the claimant’s past history of treatment and the recent trending treatment in determining plans for future treatment frequency. … There is currently no plan to establish a set of standards for specific conditions.”
In addition, at Section 9.4.5 Medical Review Guidelines-Diagnostics, the Reference Guide contains the following provision:
“In general, the reviewers include x-rays every 3 to 5 years, but include yearly x-rays there was or will be a major joint replacement. Magnetic Resonance Imaging (MRI) scans are included every 5 to 7 years. These are guidelines only. Since the determination is made on a case-by-case basis, other factors are considered, such as claimant life expectancy, past surgeries, functional status, age of injury, treatment pattern and provider recommendations.”
These Reference Guide provisions are somewhat conflicting. On one hand, a case-by-case analysis of several factors is advised. On the other hand, there is a suggested formulaic range closely adhered to by WCRC reviewers. Within the ranges, claims where surgeries have been performed result in more frequent diagnostics while diagnostic studies for non-operative conditions are allocated less frequently. The ranges may be reasonable for claims involving ongoing medical conditions and treatment, but too often, CMS reviewers take the formulaic approach while failing to consider the other factors set forth in the Reference Guide.
Strategies for Allocating Diagnostic Imaging Studies
Rather than defaulting to allocations within the ranges, actual treatment patterns and where offered, specific recommendations by treating physicians should be favored. Repeat x-rays or other diagnostic studies may be indicated while recovering from an acute injury, but not once that recovery is complete. Some injuries do resolve. Claimants, discharged after appropriate and successful treatment and who may have returned to work, are less likely to return to physicians or seek further care. Consider the example of a healed closed fracture. After active treatment consisting of casting and perhaps physical therapy, a claimant is released by the treating physician with no concerning ongoing issues. In such instance, the claimant is unlikely to return to the doctor unless there is a new injury. Based on these facts, it seems unnecessary and speculative to allocate x-rays and especially MRIs every few years. Depending on life expectancy, perhaps only a single additional imaging study or test is reasonable.
Many accidents involve a laundry list of complaints and diagnoses where diagnostic studies are often done on multiple body parts. Yet, not all reveal acute problems leading to treatment. No future care may be recommended or otherwise indicated. In such cases, no allocation of any care for those body parts including diagnostic studies is appropriate. Similarly, during the course of treatment, a claimant may complain of another body part. A classic situation involves a shoulder injury and same-side neck complaints. A single imaging study might be conducted or the new complaints, but if no related treatment is needed, no repeat studies should be included in future care.
In addition, an evidence-based approach considers current research and best standards of care. Sources like the Official Disability Guidelines (ODG), American College of Physicians’ Clinical Practice Guidelines, and guidelines of the American Colleges of Radiology and of Occupational and Environmental Medicine should be consulted by allocators and reviewers. For example, routine imaging for low back pain alone may not provide any benefit and may even lead to unnecessary intervention. Research on lateral epicondylitis suggests the use of MRIs lead to over-treatment. Specific guidelines for ankle/foot and knee (such as the Ottawa rules) promote the avoidance of imaging and unnecessary health care. These resources can provide solid rationale for more conservative allocations, whether submitted to CMS for approval or not.
In allocating future diagnostic studies along with other medical services, we view each claim on individual case-by-case basis and consider all facts, standards of care and strategies and then weigh each medical service to be included or excluded from allocation. We regard the formulaic Reference Guide ranges as guidelines only and look to actual treatment patterns and treating provider recommendations (or lack of any recommendations). We exclude diagnostic studies where appropriate. We strategize and assess the benefits and risks in proposing conservative WCMSAs. Ultimately, our approach produces more precise and cost-effective results. Our team of credentialed and experienced MSP attorneys can help insurers and employers achieve better MSAs.