When is Enough, Enough? Weighing the Benefits and Risks of Raising a Request for Administrative Review in Oregon
The goal of the Workers’ Compensation System in Oregon is to ensure that workers receive prompt medical care to allow workers to heal from workplace injuries or occupational diseases. Ideally, when there has been a compensable workplace injury, quality medical care should be provided so the injured worker can appropriately recover and return to work as soon as possible.
When a claim is deemed compensable, insurers and self-insured employers are required to pay the cost of medical services. A worker’s attending physician manages their claim and their treatment plan. Medical care will almost certainly include conservative care in form of physical therapy, massage therapy, chiropractic care, acupuncture, as well as other potential modalities. In the best-case scenario, conservative care can be entirely curative and will allow the worker to recover and successfully return to work. Alternatively, a worker fails conservative care at which time other care such as injections, surgeries, or the like are then considered. If that is not an option for whatever reason, then that may be when a worker reaches a medically stationary status and when treatment ends.
The difficulty is what to do when there is conservative treatment continues to be prescribed as curative and continues to be prescribed by an attending physician without any end in sight. The question that insurers and self-insured employers may end up asking on such claims is “when is enough, enough?”
OAR 436-010-0230(1) provides in part that medical services provided to the worker “must not be more than the nature of the compensable injury or the process of recovery requires.” This is very fact dependent. But, when faced with a claim with seemingly never-ending treatment being prescribed, one remedy that an insurer or self-insured employer may avail themselves of a request for administrative review of the treatment by the director. (ORS 656.327(1)(a)).
When considering whether to avail yourself of this potential remedy, you must weigh the benefits versus the risks of requesting such an administrative review.
Guidelines under OAR 436-010-0230(9)(a) provide in part unless otherwise provided by a Managed Care Organization’s utilization and treatment standards the usual range for therapy visits is up to 20 visits in the first 60 days, and four visits a month thereafter.
That rule provides this is only a guideline, not to be used arbitrarily either by insurers or therapists. Additionally, the rule outlines that the medical record itself must provide clinical justification when therapy services exceed these guidelines. Regardless, when an insurer believes that treatment is inappropriate or excessive, director review may be requested.
What should an insurer or self-insured employer look at in therapy records when they believe enough is enough? This all depends on the record that you have. Key considerations include not only the number of visits that a worker is prescribed, but the type of conditions that has been deemed compensable. Are the compensable conditions just a strain or sprain or something more extensive? Indeed, even if it is more extensive, what is the clinical justification of continuing treatment if the condition does not improve?
Additional considerations include what the treatment records themselves reveal both subjectively as well as objectively across visits. Ask yourself if the chart notes appear to just be carbon copies of prior records. When you read the subjective complaints in such notes, do you see visit after visit a worker reporting minimal to no improvement, or even worsening of symptoms? Perhaps instead there is no mention of how they feel treatment is going but the pain levels remain virtually identical across visits, such as a worker who always seems to report pain as a 4-5/10 on each visit. In evaluating whether to avail yourself of this remedy, ask whether you have a record that persuasively establishes the workers’ own belief that they are not obtaining relief with therapies. If you are looking at their statements and ask yourself “why are they still going if nothing is getting better?” then that is a good indication that the treatment they are receiving could be ineffectual.
Consider the objective notes. Perhaps these too may be carbon copies visit after visit to indicate that the worker is failing to make any gains. Also consider whether there is indication that the worker is fully participating in the treatment being prescribed. Such signs are indications that the prescribed treatment could be inappropriate or ineffectual.
Also consider the records as whole. Has an IME weighted in on a claim? Or perhaps a consulting physician? What is the worker saying to them, and what in turn are they opining? An IME may indicate in their opinion that a worker has clearly plateaued and ongoing treatment is no longer necessary. If conservative care treatment continues and the worker still seems to not improve, this may be further support for availing yourself of a request for administrative review.
Even if an insurer or self-insured employer decides “enough is enough” and pursues this remedy, consider the consequences of a successful administrative review. A successful review will result in an Administrative Order finding that the prescribed treatment challenged is excessive, inappropriate, and ineffectual. This will then result in no longer being liable for payment if additional treatment is provided. However, all parties involved have the right to request a hearing on the Administrative Order. The risks there are a whole other matter.
If you would like to discuss a request the risks and benefits of requesting administrative review of medical treatment as excessive, inappropriate, and ineffectual, please let me know. You can contact me at 971-383-2853 or at .
Posted by Peter Natale.
