JANUARY

2005

Child Support Enforcement v. ICAO, 04CA0523 (December 2, 2004):  The Court of Appeals (CA) held § 8-43-204(4) may be applied retroactively to lump sum settlements where the industrial injury occurred before May 31, 2001.

   Section 8-43-204(4) states if an employee owes child support and the Division of Child Support Enforcement (CSE) has filed an administrative lien and attachment with the insurer or employer, all proceeds of any award, lump sum settlement, or indemnity of any settlement shall be subject to the administrative lien and attachment.

   Section 26-13-122 authorizes the CSE to

file administrative liens for the collection of current and past due child support obligations against workers' compensation benefits. 

   Such liens have priority over any other garnishment, lien, or income assignment and shall not be modified or terminated except by written notice from the CSE.

   The CA stated a Claimant does not have a constitutionally protected right to workers' compensation benefits, and the right to receive such benefits vests upon the entry of an award. 

   Therefore, the CA held § 8-43-204(4) was constitutionally retrospective; it does not take away or impair a vested right. 

Child Enforcement Applies Retroactively

 Jack Rook, M.D. v. ICAO, 03CA0700 (January 13, 2005):  Claimant suffered an admitted injury in 1980.  Dr. Rook began treating Claimant in 1990 and continued treatment after Claimant reached maximum medical improvement (MMI) in 1994. 

   In 2001, Safeco Insurance (Insurer) requested a medical utilization review (MUR) to review Dr. Rook’s treatment.  The MUR request was accompanied by a sixty-two-page "medical chronology" prepared by a registered nurse, as well as over 1,000 pages of medical records.  A three-physician MUR panel reviewed the records and unanimously recommended that Dr. Rook not continue to treat Claimant. 

   The Director of the Division of Workers’ Compensation entered a change of provider order.  The order was upheld by the administrative law judge (ALJ) and the Industrial Claim Appeals Office (ICAO) affirmed.

   Dr. Rook contended the Insurer did not hire a licensed medical professional to review Dr. Rook’s treatment prior to submitting a request for a MUR and had therefore not followed the MUR statute requirements. 

   Section 8-43-501(2)(b) states that prior to submitting a request for a MUR, an insurer shall hire a licensed medical professional to review the services rendered.  A report of the review shall be submitted with all necessary medical records. 

   The Court of Appeals (CA) held that §8-43-501(2)(b) on its face requires neither an "independent medical examination," nor a medical opinion concerning the treatment rendered, nor a "certificate of review" addressing the necessity and appropriateness of the treatment. 

   Therefore, the CA held the nurse who prepared the medical chronology was a “licensed medical professional” and the

Insurer satisfied the requirements of  §8-43-501(2)(b). The CA stated the absence of a medical opinion in the request for a MUR is not inconsistent with the stated purpose of the MUR. 

   Pursuant to §8-43-501(1), the MUR provides a mechanism to review and remedy treatment rendered which may not be reasonably necessary or appropriate according to accepted professional standards. 

   Two panel members of the MUR concluded that Dr. Rook’s treatments were excessive. One of them noted Dr. Rook’s treatment was "way in excess of treatment guidelines," that no attempt had been made to transition Claimant to self-management, and that documentation of objective physical findings was lacking. The other found Dr. Rook’s diagnosis to be poorly supported and his treatments not only inappropriate, but harmful.

 

 

 

 

 

 Nurse Qualifies as “Medical Professional” for MUR