Hello, dear readers!
Monday is once more upon us and your humble blogger’s crazy ravings are once more upon your screens!
Today’s blog post touches on everyone’s favorite topic in workers’ compensation: Utilization Review!
In the writ denied case of Visger v. San Francisco 49ers, where the WCJ and WCAB held that applicant was entitled to medical treatment because the UR report denying it was “untimely” in that it was not communicated to the necessary parties (applicant; applicant’s attorney; and the treating physician requesting authorization for the treatment), as required by California Code of Regulations section 9792.9(c)(4) (“Decisions 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 communication by telephone shall be followed by written notice to the requesting physician, the injured worker, and … the injured worker’s attorney within 24 hours of the decision for concurrent review…”).
Mr. Visger’s primary treating physician submitted an RFA on March 7, 2014 requesting a particular form of medical treatment, which utilization review denied on March 14, 2014. Applicant then sought to invoke WCAB jurisdiction on the premise that UR was untimely. Now, under section 9792.9(b)(1), UR needs to provide a determination within 5 business days from receipt of the RFA, but the challenge was one which we’ve seen previously on this blog, namely that the parties weren’t informed, in writing, within 24 hours of the determination being made.
From the WCJ’s Report and Recommendation: “Defendant argues that the UR contains a ‘cc’ show it was sent to [the necessary parties] but this is not proof that the letter was timely communicated to [the necessary parties]. No evidence of where the letter was sent from, no proof of service, postmarked envelope, fax indica or other proof of receipt was offered by Defendant.”
Your typical physician is going to have a fax machine and, now-a-days, an e-mail address. Your typical applicant’s attorney is going to have the same. How are you supposed to communicate a UR determination within 24 hours to an applicant that might have neither – and is under no obligation to provide the defense with that information even if he has it?
After all, the WCJ’s opinion says that there is no evidence the UR determination would have been received “by Applicant and his attorney in California within the statutory time.” But let’s look at the language in Bodam, which is the current authority that a timely UR is made untimely by failing to properly communicate the determination: “defendant’s UR decision is untimely because written notice was not sent to [the PTP], applicant, and applicant’s attorney within two business days after the UR decision was made.” (Bodam v. San Bernardino County (2014) 79 CCC 1519, 1523; emphasis added).
So, at least by your humble blogger’s reading, the standard is not receipt of the UR determination within two days, but proof that it was sent within two days, as per Bodam. Though not an en banc decision, Bodam was a “Significant Panel Decision.”
This means that a timely UR determination should be faxed or phoned in to the requesting physician within 24 hours, and written notice should be sent to the applicant and his or her attorney within 48 hours of a determination. UR vendors should be encouraged to make it easy on us defense attorneys by including either a proof of service or a fax transmittal log with every report.