As will every victory for the employers and insurers, little by little, the gains are chipped away.  So too for the ground gained in Dubon, whereby the WCAB held, en banc, that just about every UR dispute, save timeliness, goes to IMR, where a secret ritual is held and, after invoking the spirit of the medical treatment deity “Medi-Nessisitus,” a ruling is ultimately rendered.

So, your humble blogger now brings you the case of Shanley v. Henry Mayo Newhall Memorial Hospital, a panel decision in which the WCAB held that for a UR report to be timely, as discussed in the Bodam case, all time requirements must be complied with, including being communicated in a timely fashion, rather than just a decision being reached.

In Shanley, both UR decisions were reached within five business days, and the decisions were mailed on the same day that the decision was reached to applicant’s counsel, applicant, and the physician who submitted the request for authorization.

However, the WCAB concluded that there was insufficient evidence that defendant had communicated the denial of authorization by telephone within 24 hours of reaching the decision, even though the UR report reflected that a peer-to-peer had been attempted with the treating physician and a message was left.

Citing Labor Code section 4610(g)(3)(A) (“[d]ecisions to approve, modify, delay, or deny requests by physicians for authorization prior to, or concurrent with, the provision of medical treatment services to employees shall be communicated to the requesting physician within 24 hours of the decision … [d]ecisions resulting in modification, delay, or denial of all or part of the requested health care service shall be communicated to physicians initially by telephone or facsimile, and to the physician and employee in writing within 24 hours for concurrent review, or within two business days of the decision for prospective review, as prescribed by the administrative director” and California Code of Regulations section 9792.9(b)(4) (“[d]ecisions to modify, delay or deny a physician’s request for authorization prior to, or concurrent with the provision of medical services to the injured worker shall be communicated to the requesting physician initially by telephone or facsimile” the WCAB concluded that defendant had failed to establish that the phone call to the treating physician by the UR which appears to have been scheduled as part of a peer-to-peer review, communicated the result of the UR determination.

The panel decision noted that, without an explanation as to the content of the message that was left with the treating physician, there was no basis upon which to conclude that the message communicated the denial of authorization.

The issue of medical necessity was ordered returned to the trial level.

So, dear readers, do you think it’s time for the UR vendors to start preparing a declaration under penalty of perjury that a phone-call or facsimile followed every UR decision?  Or, perhaps, UR physicians should start using the same automated service used by dentists and treating physicians to remind us of our appointments?

Because UR is typically a pretty rushed affair, and timeliness appears to be the prevailing challenge against IMR (other than constitutional grounds), perhaps we’ll see more of this potential weakness exploited by applicants in the near future, and proactive steps should be taken to nip this in the bud.