Projecting for MSAs in the Midst of Differing Opinions in California Cases, a Nurse Allocator’s Perspective
Projecting for Workers’ Compensation Medicare Set‐Asides (MSA) in order to prevent a cost shift burden to Medicare has been an evolutionary process since it began. In the past, attorneys and Nurse Allocators largely depended on the injured worker’s treatment records and payment histories to reasonably project for injured worker’s future medical needs pertinent to their work injury. In the absence of a treating physician’s recommendation, standards of care (SOC) and the Official Disability Guide (ODG) were secondarily relied upon. The Allocator would review stacks of medical records and payment histories spanning years or even decades to derive the significant medical information and project future medical care. Fortunately, the WCMSA Reference Guide eventually limited the information to be considered for projections to the last two years of available treatment records for each injury.
With the medical records narrowed down, but the future medical care at times ambiguous and often disputed, the involved parties began hiring medical-legal examiners referred to as Independent Medical Examiners (IME). These examiners were hired to steer the utilization review process, weigh-in on causality of a condition, negate or support future medical care indicated by the treating physician, or in the absence of a treating physician’s opinion, to state potential future care based on the claimant’s examination and SOC. Inevitably, this scenario lead to opposing opinions that sometimes lead the involved parties to court where workers’ compensation judges made final determinations.
The California Worker’s Compensation system redefined the IME role to a significant degree. When there is a question as to what benefits an injured worker should receive, a Qualified Medical Evaluator (QME) can be enlisted. This physician must take additional educational courses and obtain a license to qualify as a QME and be included on the randomly state-generated list. A Panel QME (PQME) is where three QME physicians are randomly chosen to resolve medical disputes or relatedness. The injured worker may then chose one of the three PQMEs or be assigned one of the three by the adjuster if a decision is not made within ten days. In cases where the injured worker’s attorney and the claims adjuster want to avoid the state-run QME process and circumvent costly legal disputes, an Agreed Medical Examiner (AME) can be used. Both parties agree on using the particular medical professional, and in essence agree that their opinion is objective and trustworthy. https://www.dir.ca.gov/DWC/MedicalUnit/faqiw.html
More recently, Senate Bill (SB) 863 indicated that an AME and QME could not weigh in on disputed medical treatment for injuries occurring after July 1, 2013, but they could opine if an injured worker needed future medical care for an industrial injury. https://www.dir.ca.gov/dwc/Reports/SB863-Assessment-WC-Reforms-July-2014.pdf. SB 863 developed the Independent Medical Reviewer (IMR), which can only be requested by the injured worker when their care has been denied, delayed or changed by the insurance’s utilization review process over the medical appropriateness of treatment recommended by a physician. The IMR then attempts to resolve the dispute in an effort to avoid the costly legal process. This newer method has cut the decision process from 9 to 12 months down to 40 days. Interestingly, the IMR’s medical decision cannot be overturned by a judge. The judge will limit to the legality of the issues, not the medical. https://www.dir.ca.gov/dwc/sb863/SB863_Overview.htm.
Summarily, a case can become quite complicated with multiple opinions floating around. Therefore, the WCMSA Reference Guide stipulates that, “Independent Medical Examination (IME) reports, Qualified Medical Examination (QME), and Agreed Medical Examiner (AME) reports are not a substitute for medical records.” https://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Workers-Compensation-Medicare-Set-Aside-Arrangements/Downloads/WCMSA-Reference-Guide-Version-2_9.pdf (see pg. 20). It is this Allocator’s opinion that this means that the treating physician is the first source for projecting future medical care followed by the IME, QME, AME, and PQME. Although it would seem that an IMR that conflicts with the treating physician’s recommendation should trump the treating physician, CMS does not necessarily defer to the IMR any longer.
As a legal nurse consultant who has been writing MSAs since 2002, I have seen countless medical legal evaluations. Many have been excellent, while others prompted distrust as a loss of objectivity compromised the legitimacy of their opinion. Experience, the treating physician, the ODG, SOC, and the WCMSA Reference Guide have shaped the outcome of each MSA that I have written. As an Allocator, I diligently strive for unbiased, reasonable MSA projections of future medical needs to protect the interest of Medicare to avoid cost shifting post-settlement. It is my personal commitment to develop an MSA that is written objectively, regardless of the referral source. Once the MSA is written, the NBKL MSA team further shapes it to reflect the relevant legal issues in the case. Our objectivity garners trust from our clients that they have chosen the best medical-legal team to provide an MSA that protects the interests of all involved parties to efficiently bring the case to settlement and satisfy the mission of protecting Medicare’s interest.