IMR: Why a Secret Tribunal Doesn't Work

I was in Sacramento when the idea became law.

It was August 2012, and the hallways in the capital were buzzing with activity. Among the efforts was to push through another Workers Compensation reformulation(1)package that was making its way through the legislative process, including an "Independent Medical Review" (IMR) component. The idea was to streamline the treatment dispute process so injured workers could get the treatment they needed faster, and employers could get them back to work.

The concept could have worked—but no one could have anticipated the pervasive influence the lack of accountability would have. Actually, some of us in Sacramento did. Our founding fathers certainly would have - more on that later. I know Justice Stanley Mosk would have seen the bureaucratic nightmare coming if we were lucky enough to still have him with us today, and still on the Supreme Court.

With over 80% of all medical treatment delivered through Medical Provider Networks (MPN), many in Sacramento that August thought a streamlined process would speed up an MPN physician’s request for treatment —not cause even more delays. After all, MPN physicians are selected by claims administrators’ own MPN vendors - why in the world would claims administrators get in the way of their own hand-selected doctors? Of course, there could be some experimental, or outrageous treatment requests that would be vetted by UR and IMR, and IMR would be a reasonable safety net. But used as a tool to avoid authorizing legitimate treatment? No way.

In any event, we left Sacramento hoping it would save costs and benefit injured workers, despite our reservations.

Today, the still unfolding, brutal reality of the UR and IMR process is now well known. California now has the embarrassing distinction of being covered in the national press for its inhumane treatment of its most severely injured workers—a system, ironically, that is supposed to help them. The denial mills (UR), and the secret (2) tribunbal (3) known as IMR, are both working overtime to prevent workers from getting back to the job, and thereby causing incalculable damage to the California economy.

What do we know now that we didn't in August 2012? The lack of accountability in any human system - even in workers' compensation - tends to distort the purpose of the system. If I remember the concept correctly, it has something to do with what our founding fathers called "checks and balances".

In law, we call it "due process". Call it the right to conduct "discovery." Call it anything you want. The bottom line is, when human beings know they cannot be held accountable for their decisions, things like blind loyalty to "cost savings" at the expense of human health suddenly comes into sharp focus. THAT is a major reason why disclosure of the identity of the IMR reviewer is so important—because when the decision maker knows they can be held accountable, the deliberation will more likely be balanced. Just like when the CHP is parked on the side of the freeway - people hit the brakes. Now there's accountability we've  all experienced. 

If the Stevens challenge to IMR only succeeds in one way— requiring the identity of the IMR reviewer to be known—then the reviewer will be on their best behavior, and the right to challenge the basis of the decision will be restored though discovery if necessary. Restoring that accountability alone will be a major improvement for injured workers and employers of this state to the IMR process - even if the case makes no other change to the current IMR process. 

As for the thousands of injured workers suffering each day while they wait for healing treatment, accountability can't come fast enough. 

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(1) I call them "reformulations" rather than "reforms" because reforms should improve a system. Reformulations simply change things, not always for the better. Ask Coke what happened when it reformulated its 100-year-old recipe, transforming it into "The New Coke." They know all about the difference between the two.

(2) "Secret" is defined as: "not known or seen or not meant to be known or seen by others."

(3) Wikipedia defines a tribunal "any person or institution with authority to judge, adjudicate on, or determine claims or disputes—whether or not it is called a tribunal in its title."