WORKERS’ COMPENSATION

MANAGEMENT-LABOR ADVISORY COMMITTEE

Subcommittee on Independent Medical Examinations

November 14, 2016

1:00 p.m. – 2:00 p.m.

Labor & Industries Building, 350 Winter Street NE, Salem, Oregon

Committee Members Present:

Guy Boileau, Louisiana-Pacific Corporation

Tammy Bowers, May Trucking

Alan Hartley, Shari’s Restaurants

Lynn McNamara, CityCounty Insurance

Ben Stange, Polk County Fire District No.1 {via teleconference}

Ateusa Salemi, Oregon Nurses Association

Diana Winther, IBEW Local 48

Kimberly Wood, Perlo Construction

Theresa Van Winkle, MLAC Committee Administrator

Committee Members Absent:

Aida Aranda, Oregon & Southern Idaho Laborers-Employers Training Trust

Kevin Billman, United Food and Commercial Workers

Meeting Participants:

Jennifer Flood, Ombudsman for Injured Workers

Courtni Dresser, Oregon Medical Association

Dr. Joan T Takacs, Oregon Medical Association

David Barenberg, SAIF Corporation

Dan Schmelling, SAIF Corporation

Myra Aichlmayr, Workers’ Compensation Division

Lou Savage, Workers’ Compensation Division

Agenda Item Discussion

Opening (0:00:00)

Guy Boileau called meeting to order at 1:02 p.m.

Meeting Minutes

(0:00:20)

The September 28, 2016 meeting minutes were approved.

Introduction

(0:00:45)

Guy Boileau introduced the new MLAC management member, Alan

Hartley.

Overview

(0:01:30)

Guy Boileau noted that at the last meeting, the subcommittee discussed

getting input from the Medical Advisory Committee (MAC). Theresa Van

Winkle summarized the subcommittee’s questions for MAC along with

MAC's feedback. Guy Boileau summarized the two potential law changes

in the draft proposals for discussion.

Modify the third criteria for getting a Worker Requested Medical

Agenda Item Discussion

Examination (WRME) to allow a WRME if there’s no written

objection from the attending physician 30 calendar days from insurer

receipt of report.

Allow the worker to select a WRME physician from IME provider list.

Guy Boileau asked if the rule requiring that the IME be provided to the

attending physician should be amended to ask for concurrence and

describe the consequences for non response (if a denial based on an IME

is involved).

Discussion -

SAIF proposals

(0:08:15)

David Barenberg and Dan Schmelling, SAIF Corporation, summarized

their ideas regarding IMEs and WRMEs.

Have a requirement that a request for concurrence only needs to be

sent out in the cases where a claim is denied based on an IME.

Currently, the administrative rule OAR 436-060-0140(10)(a) requires

the insurer to add certain language to the denial letter if they are basing

the denial on an IME report. Since this language is in the denial letter,

the insurer knows whether the denial is based on IME. SAIF suggests

adding a provision in that rule that says the insurer must send a

concurrence letter no later than the date of the denial if the denial is

based on IME.

Guy Boileau asked if it would be acceptable to send out the request for

concurrence on the same day as the denial is sent out. Dan Schmelling

replied that would not be a good practice. The hope would be that the

concurrence request was already sent out. Dan outlined a few additional

ideas and issues.

The insurer has 60 days to accept or deny a claim, and they may

receive an IME report that supports denial on the 60th

day, so there are

instances where a denial is issued before obtaining concurrence.

Since the denial letter requires language about whether the IME is the

basis for the denial, that would be the latest possible day an insurer

should send out a concurrence request. If it is a requirement that the

insurer ask for concurrence no later than the date of the denial, the

request for concurrence would already be sent by the time the worker

appeals the denial.

There could be a change in the administrative rules that if the

attending physician has not responded when the WRME is requested,

it would be considered a non concurrence for the purpose of being

eligible for a WRME. This would create incentive for the insurer to

follow up and seek a response from the attending physician after

issuing the denial.

Discussion – Guy Boileau asked if there should be a requirement to ask for concurrence

Agenda Item Discussion

requesting

concurrence

(0:13:00)

(0:16:45)

and describe language regarding consequences for the worker if there is no

response.

Tammy Bowers asked if Dan Schmelling was suggesting that if the is

claim accepted based on an IME, the insurer should send the report to the

attending physician without requesting concurrence.

Guy Boileau asked if prescribing language, timeframes, or certified

receipt, should be limited to situations where it is WRME dependent.

Dan Schmelling noted that the worker may not be eligible for a WRME if

a concurrence request was never sent. However, an insurer will sometimes

receive an IME report that supports the compensability of the claim and

accept the claim. OAR 436-010-0265(10)(b) requires the insurer to send

that IME report to the attending physician or authorized nurse practitioner

within three days. In situations where the claim is accepted, Dan raised the

concern that requesting concurrence could add more hassle and burden to

the process.

Alan Hartley clarified with Dan Schmelling that there would be two

letters. One letter would accompany the copy of the IME report; the other

would be a separate request for concurrence. The insurer should be

sending the request for concurrence because the attending physician’s

response will determine whether the worker is eligible for a WRME.

Kimberly Wood noted that there are concerns from the medical

community about the timing of requests. If we ask for more from them,

she suggested asking only for responses that are necessary. Ateusa Salemi

commented that if the IME provider agrees with the attending physician,

it’s not necessary for the attending physician to concur with themselves.

Dan Schmelling commented that the worker may lose the benefit of

obtaining a WRME due to lack of response from their attending physician.

A request for concurrence should be sent when the denial is based on an

IME and the worker may be eligible for a WRME. Kimberly Wood

confirmed with Dan that if the attending physician fails to respond, it

should be considered non concurrence for the purpose of WRME

eligibility.

Guy Boileau asked if anyone disagreed with prescribing specific

concurrence language (including consequences to the worker) only for

WRME eligibility denials or partial denial situations. No objections were

raised.

Discussion – Guy Boileau asked if there would be an issue with allowing the attending

Agenda Item Discussion

physician

comments and

certified mail

(0:20:22)

(0:23:30)

physician to make comments on the IME report. Guy got the impression

from MAC that they may not agree with the entire IME.

Dan Schmelling responded that you still have to look at the basis of the

non concurrence. The attending physician may concur but disagree with a

portion of the IME report. For example, are they not concurring with

compensability of the claim, or are they pointing out something wrong

with the history?

Tammy Bowers asked if there was space for comments in the concurrence

letter. Dan Schmelling responded that SAIF provides a space.

Guy Boileau asked if requiring certified mail in these few circumstances

would create an undue hardship for the insurer. Certified mail was

something that the physicians asked about. They have a timeline to adhere

to, but they aren’t always sure when they received the IME report. Dan

Schmelling responded that in those few situations, from the medical

provider’s prospective, would they want to be getting certified mail and

signing for it? Changing the administrative rules so that non response

means non concurrence would create incentive for the insurer to follow up

with the attending physician without creating a new process of sending the

report by certified mail.

Guy Boileau asked Dan Schmelling if he is proposing that the timeframe

for the attending physician to respond should be 30 days from date of

letter. Guy noted that the attending physicians will need some specificity.

Dan thinks that the simplicity of changing the default is that it doesn’t add

a timeframe to the process. Instead, it is just a question of whether there is

a response by the time the department looks at the WRME request. It is

likely going to be 30 days out by the time the worker gets the denial letter,

seeks an attorney (if not represented), and requests hearing. The request

for concurrence would already have been mailed 30 days ago, so there

wouldn’t be a burden on the physician to respond within a certain time. It

is simply that the request for concurrence goes out and it is the insurer’s

responsibility to follow up. Certified mail would just be another thing to

throw in, and it probably would not speed up the response.

Theresa Van Winkle asked Dan Schmelling if he has any alternative for

tracking when the IME report is received. Dan responded that he views it

as the carrot at the end, and that the insurer has the incentive to get a

response.

Guy Boileau commented that there has to be some sort of timeframe for a

physician to respond, and they should know about the consequences.

Agenda Item Discussion

Tammy Bowers clarified with Guy Boileau that there was a suggestion

from a MAC member to send the IME report by certified mail. However,

certified mail was only a suggestion from one MAC member, not

something the whole committee agreed upon. Alan Hartley commented

that he doesn’t see the value of using certified mail if the burden is on the

insurer to get a response.

Discussion –

physician

response

timeframe

(0:29:06)

(0:33:04)

Diana Winther verified with Dan Schmelling that if the insurer receives an

IME the report must be sent out in 7 days. Diana noted that would be a

familiar timeframe and it would be simple for insurers to maintain that.

Even if the report was sent out on the 3rd

day, in a 30 day timeframe, that

gives 3 weeks to respond.

Guy Boileau asked if 30 days from the date of the letter (for the doctor

respond) is reasonable. If we’re informing the doctor about consequences,

we need to be precise about what we need.

David Barenberg clarified with Guy Boileau that the letter Guy was

referring to was the request for concurrence.

Dan Schmelling confirmed with Guy Boileau that this would be limited to

situations involving eligibility for the WRME.

Diana Winther asked if workers immediately know they are eligible for a

WRME when they receive a denial letter. If we are potentially waiting 30

days for a doctor to respond, are we unintentionally cutting into the

worker’s timeline in which they are trying to find an attorney, find out if

they are eligible for a WRME, and then schedule a WRME? Guy Boileau

responded that he thinks most workers don’t know they are entitled to a

WRME. Tammy Bowers noted that it is in the denial language.

Dan Schmelling noted that it puts more burden on the insurer if the default

regarding concurrence changes. The insurer would have a 30 day window

to obtain a response. Dan pointed out that there can be situations where

the attending physician agrees with the IME report after the 30 day

window has passed, and the worker hasn’t appealed the denial or

requested a WRME yet. Would the worker still be eligible for a WRME in

that situation?

Tammy Bowers asked if the insurer could issue an amended denial stating

that the attending physician has agreed with the WRME. Dan Schmelling

asked Tammy about tracking, issuing amended denials and giving

extended appeal rights. Tammy responded that if the attending physician

response came back 5 days late, extend the appeal rights by 5 days.

Guy Boileau asked if the timeframe should be 30 days from the date of

Agenda Item Discussion

letter to date of insurer receipt of the concurrence letter. Dan Schmelling

responded that they would need to send the letter by certified mail so they

could track receipt.

Guy Boileau clarified with Dan Schmelling that if the 30th

day is passed,

and no response has been received, a denial would be issued. Dan said

yes, and that the suggestion was that we could request that response be

within 30 days, but not require it. Guy Boileau commented that makes it

seem somewhat arbitrary.

Dan Schmelling responded that the worker is not entitled to a WRME

until DCBS determines they are eligible. Guy Boileau commented that he

can’t speak for the department, but he would guess that the less ambiguity

in the process, the better.

Public Testimony

– Dr. Joan

Takacs

(0:37:18)

Dr. Joan Takacs, Oregon Medical Association, provided testimony. Dr.

Takacs treats workers’ compensation patients at a clinic geared towards

IMEs. Dr. Takacs summarized some issues she has observed.

Additionally, Dr. Takacs provided a sample concurrence request.

At her clinic, no one knew that there was a 14 day requirement for

giving a response to the insurer.

In the past, she would get IME reports and concurrence letters.

Nowadays, insurers have only been sending IME reports, not

concurrence letters.

Sometimes, the IME report does not get to Dr. Takacs, but the denial

letter that goes to the patient says that the claim is denied because the

attending physician didn’t comment on the IME report. This makes

patients unhappy, and Dr. Takacs to tell them she didn’t concur

because she didn’t know the IME report existed.

Doctors don’t know whether they’re supposed to concur or not, and

that affects the patient.

IME reports can be helpful and provide a lot of medical history.

Sometimes, Dr. Takacs almost ends up concurring with the IME

report, but will ultimately not concur because she doesn’t agree with a

portion of the report.

Dr. Takacs doesn’t think that the timeframe is an issue.

Doctors may not want to concur because they don’t want to be set up

liability wise. They treat patients based off their medical history and

their physical conditions, but sometimes one of those ends up being

wrong. Doctors get tired of having to blow the whistle, so they

sometimes don’t concur because they don’t want to set themselves up

to have a patient angry with them. Dr. Takacs commented that there

ought to be some way to say “I defer.”

Some physicians are comfortable stating their opinion, but others are

not.

Dr. Takacs commented that physicians need to know the timeframe

Agenda Item Discussion

(0:40:43)

matters. Dr. Takacs has missed that she needed to respond by a certain

time, and this is something she keeps up on.

Guy Boileau noted that one of the big points of the subcommittee’s

discussion is to change the default so non response is treated as a non

concurrence. That would prevent workers from not being eligible for a

WRME because their attending physicians didn’t respond. Dr. Takacs

commented that would be nice for physicians.

Guy Boileau noted that Dr. Takacs is not the only person to experience

that. MAC members pointed out issues where doctors have not received

the report, received the report without any questions asked, or weren’t told

about the timeframe to respond. There is already language about when

insurer should send the report out, but no language about asking for

concurrence. What is being proposed is that in WRME situations where

there are more profound legal consequences, certain language needs to be

in the letter to the attending physician.

Discussion --

physician

response

timeframe

(0:43:35)

Guy Boileau asked what the timeframe for attending physician response

should be.

Tammy Bowers asked that if the problem is that lack of doctor response

means a concurrence, why not just change that? Tammy asked if other

issues would resolve if that change was made. Guy Boileau responded that

he did not think so. One of the issues is that there is an inconsistent

approach to getting information to the attending physician. Additionally,

there is a lot at stake as to whether a worker gets WRME or not. Guy

thinks that precision in the process will create more equity.

Dan Schmelling noted that in some situations the insurer is not going to

hold the denial while waiting for concurrence because of the 60 day

timeframe to or accept or deny the claim. Additionally, there can be other

compensability issues, not just medical, so the insurer may issue a denial

regardless. Guy Boileau responded that is a little outside scope of the

subcommittee’s discussion.

Guy Boileau asked the subcommittee if the timeframe 30 days from the

date of the letter makes sense.

Diana Winther commented that it would have to be with the understanding

that in order to have a firm timeline, if they don’t get it back in that

timeframe, it doesn’t eliminate the worker’s access to get WRME (even if

the response is a concurrence). Diana thinks that in order for the

department to make determination about WRME eligibility, they need a

hard deadline. If the doctor gets their response in on the 31st day and it

negates access to the WRME, there is no point to having a timeline. David

Agenda Item Discussion

(0:49:00)

(0:50:55)

Barenberg responded on that scenario, the default would be that WCD

would not wait, rather than having to wait for a late response.

Tammy Bowers noted that the worker has 60 days to appeal a denial. If

they appeal 3-4 weeks after the denial and ask the department about

WRME eligibility, and the doctor’s concurrence has been received, they

would not be eligible. But if no concurrence had been received (after the

timeframe), they should be eligible.

Dan Schmelling commented that at the point in time the department is

reviewing WRME eligibility (whether it’s a week after denial or 5 weeks

after denial), if there’s no concurrence in file, the default should be non

response and the worker is eligible for a WRME.

Diana Winther commented that maybe the time line would be the time the

department receives the request. If the response isn’t in the file at that

point, it might as well have never been there at all.

Dan Schmelling noted that SAIF drafted some rules based off the point

when WCD starts processing the WRME request. If there was a 30 day

timeframe and the department received a WRME request on the 14th

day,

would they have to wait for 30th

day to start the process? Or would the

department just examine the information available at the time they receive

the WRME request?

Lou Savage, Workers’ Compensation Division, commented that

uncertainty is a problem. If you’re weighing the evidence at the end of the

day, the fact that there is both an IME opinion and an attending physician

opinion that may concur with the IME report (but was not timely), it’s still

a question of weighing the evidence. Lou likes certainty so the process can

move along.

Guy Boileau proposed that the time frame for the attending physician to

respond be 30 days from the date of the concurrence letter. No objections

were raised. Diana Winther added that this is to provide the attending

physician with an understanding that they can’t procrastinate on

responding. The concern she had about the situation she described earlier

would only really happen if a denial was issued early on. She doesn’t

know how often that would happen. Diana is comfortable that if

concurrence is in the file by the time the department gets a WRME

request, that is fine. If it is not there and shows up late, the department can

figure out what weight they want to give it.

Discussion –

WRME

Guy Boileau asked whether the worker should pick the WRME physician.

Agenda Item Discussion

physician

selection

(0:54:10)

(0:58:13)

Kimberly Wood pointed out that the worker can switch attending

physicians and has three choices throughout the claim. At a previous

meeting, Sheri Sundstrom, Hoffman Construction, has mentioned that the

reason the employer can have multiple IMEs was to counterbalance that.

Guy Boileau asked for any thoughts about the WRME process proceeding

the way the medical arbiter process goes as opposed to letting the worker

pick the WRME doctor.

Myra Aichlmayr, Workers’ Compensation Division, provided information

about WRME doctor selection. The WRME process already uses a

deselection process (if they have three doctors in the right specialty). The

department chooses three providers for the WRME and the worker has

ability to mark out one name. The department then chooses from the two

left.

Jennifer Flood, Ombudsman for Injured Workers, commented that being

able to choose the doctor from a list would be preferred by injured

workers.

Alan Hartley asked if the state is seen as neutral party. Diana Winther

responded that injured workers don’t see the state as neutral (depending

on their experience).

Kimberly Wood asked Dan Schmelling what physician options SAIF has

for an IME. Dan Schmelling responded that they work directly with the

IME vendor, and they usually ask about availability, location, time, and

medical specialty. All physicians have to be credentialed through WCD.

Jennifer Flood commented that the insurer gets to select their independent

examiner. Why not provide that to a worker for a WRME?

Kimberly Wood noted that the worker gets to choose their attending

physician. It seems fair to Kimberly for the impartial state to provide three

names to pick from.

Ben Stange commented that it is important to keep in mind that workers

don’t know the workers’ compensation system. For many workers, by the

time they get to a WRME, it may be the first time they have contact with

legal counsel and the first time they know they could change doctors. Ben

noted to Dan Schmelling that theoretically, there aren’t restrictions placed

on who you can pick for an IME physician.

Ben Stange would suspect that many workers do not know that they have

three choices. Diana Winther noted that is her experience from talking to

Agenda Item Discussion

(1:01:42)

(1:05:01)

injured workers. Additionally, a lot of her members don’t have a regular

doctor, and it could be the first time they are meeting the attending

physician. It might not work out for a variety of reasons. Diana

understands the desire to have balance, but the circumstances the worker

is operating under are different than that of insurer. The insurer has more

knowledge of the process.

Guy Boileau pointed out that if you make it an entirely worker selected

process, there is a concern that they will always pick the same doctors.

Ben Stange commented that argument could be diffused because there is

interest by the person seeking the IME or WRME to make sure they have

a credible person.

Guy Boileau noted that his concern is about who is more likely to pick

according to a specialty as opposed to an ideological persuasion, the

department or worker or their attorney.

Alan Hartley commented that the worker doesn’t have knowledge of

medical field and questioned whether the worker is the best person to pick

a doctor from a list.

Ben Stange asked how the division picks from the two doctors left after

deselection. Myra Aichlmayr responded that when she did the WRME

process, for the most part, there was no special process. A lot of times,

location (which is closest to the worker) may have influence. Guy Boileau

asked Myra how the initial pool of three doctors is selected. Myra

responded that the provider should be in the specialty closest to the IME

provider’s specialty. This is because the WRME provider has to answer all

of the IME provider’s questions, along with any additional questions from

the worker’s attorney. Additionally, sometimes there aren’t three doctors

to pick from and there is no deselection process.

Ben Stange commented that if the selection of the doctor after the

deselection is somewhat arbitrary, it doesn’t seem harmful for the worker

to select the doctor rather than deselect. It would maybe give some more

credibility to the system in the worker’s eyes.

Kimberly Wood clarified with Ben Stange that his suggestion was that the

department give the worker three names, and that the worker picks one.

Kimberly noted that would give the worker the feeling that they got to

pick.

Lynn McNamara noted her concern was that an open list of doctors

wouldn’t be helpful to the worker. If the state could narrow that list down,

that would be fine.

Agenda Item Discussion

Dr. Takacs commented that sometimes another opinion on the IME report

is needed, but the doctor doesn’t have to be in the exact same specialty.

Dr. Takacs thinks it depends more on the diagnoses rather than the actual

specialty, but the doctor does need to have expertise in the area.

Ben Stange commented that how the division determines the three doctors

doesn’t need to change.

Guy Boileau asked who was in favor of letting the worker pick from three

physicians identified by the department. All members were in favor of

this.

Discussion

(1:09:58)

(1:14:22)

Guy Boileau asked whether a special type or font is needed for notices.

Kimberly Wood responded that changing the default would mean it is not

necessary to change the type or font.

Dr. Takacs asked why the doctor would want to answer (given the change

in the default). Guy Boileau clarified with Dr. Takacs that concurring does

serve a purpose, and would help the claim process. It is not going to hurt

patient if the doctor doesn’t respond. The best thing for the patient is for

the doctor to not respond.

Alan Hartley asked Dan Schmelling if SAIF is has no problem if the

doctor does not respond. Dan responded that SAIF has proposed that non

response should be considered non concurrence for the purposes of

eligibility for a WRME. However, the insurer needs concurrence at the

end of the claim for claim can close.

Tammy Bowers brought up a concern about usage of the term non

concurrence because it could create legal contradictions. She would want

to take that specific term out. Dan Schmelling responded that SAIF has

created some suggested wording. Guy Boileau asked Dan if he could get

that to Theresa Van Winkle.

David Barenberg, SAIF Corporation, noted that the strong preference is

that the attending physician responds. They’re the ones who know the

most about the patient’s history. They want to encourage participation.

Theresa Van Winkle responded that would be taken into consideration.

Theresa Van Winkle noted that the previous meeting notes needed a small

change to mark Alan Hartley excused.

David Barenberg noted that this is an opportunity to educate physicians

and work with the Oregon Medical Association (OMA) to make the

Agenda Item Discussion

process clearer. Courtni Dresser, Oregon Medical Association, responded

that OMA is happy to help with the education process, and asked how we

will ensure that doctors are receiving the IME report.

Guy Boileau responded that it is already required by rule to send the IME

report to the attending physician. Dr. Takacs commented that the report

doesn’t always come. Guy responded that the issue of enforcing the rule

that attending physicians must receive the IME report is a different

conversation. Ateusa Salemi commented that changing the default on

concurrence encourages insurers to make sure the IME actually got to the

provider.

Meeting

Adjourned

(1:19:22)

Guy Boileau adjourned the meeting at 2:21 p.m.

*These minutes include time stamps from the meeting audio found here:

http://www.oregon.gov/DCBS/mlac/Pages/exam-subcommittee.aspx

**Referenced documents can be found on the MLAC Meeting Information page here:

http://www.oregon.gov/DCBS/mlac/Pages/exam-subcommittee.aspx