WCDefenseCA

Hello, dear readers!

Your humble blogger is all for making more money, of course, but certain ethical and moral instincts in my cold, hard, defense attorney heart militate against driving up defense attorney costs for no good reason.  So, as my hands are clenched in fists of rage, relaxing only to type this blog post, I bring you the case of Czech v. Bank of America, which I hope explains the title for today’s post.

Basically, the primary treating physician transmitted the Request for Authorization to the defense attorney and not to the claims administrator.  The matter proceeded to an expedited hearing and the WCJ awarded treatment to the injured worker, ruling that communicating the RFA to the defense attorney was sufficient to trigger defendants obligations under utilization review.

Defendant argued that California Code of Regulations section 9792.9.1(a), requires transmittal of the RFA to the claims administrator rather than ANYONE ELSE IN THE UNIVERSE.  So, the defendant argued, faxing it to the defense attorney is not enough.  The WCJ characterized this as a “hypertechnical interpretation” and found that a defense attorney has a duty to communicate the RFA to the claims administrator.

On reconsideration, the WCAB panel ruled that the defendant had a duty to conduct a good faith investigation and provide benefits when due, citing California Code of Regulations section 10109, and that if the defendant is alerted to a possible RFA out there somewhere, even without having received it, diligent steps are required to obtain the RFA and refer it to UR.  Reconsideration was denied.

Lexis has a good discussion of this case here, but characterizes this as a triumph of common sense over the regulations.  Your humble blogger begs to differ.

Do we remember the en banc case of Cervantes v. El Aguila Food Products, Inc.?  Therein, the WCAB specifically held that 2011 8 CCR 9792.6 (you’ll have to look at the 2005-2012 version of this one, folks) required that a narrative report’s request for authorization, if not using the RFA form, “be clearly marked at the top that it is a request for authorization.”

The language used by the en banc opinion was that “claims adjusters routinely receive numerous medical reports from treating physicians.  Therefore, if in a spinal surgery case a particular report might trigger the 10-day deadlines for a defendant to both complete UR and make a section 4062(b) objection, then the defendant should be given clear notice that authorization for spinal surgery is being requested.”

Notice, that there was no consideration of so-called “common sense” by the en banc WCAB, but only the strict requirements set out by the regulations.

Well, adjusters are still swamped, and that’s why many of them don’t even want the RFAs, which are supposed to go straight to the UR vendor.

What happens when the RFA is sent to the defense attorney instead?  The defense attorney has to process it and determine if it was sent only to the defense attorney or if this is just a courtesy copy.  Then the defense attorney has to forward this to the adjuster who is already dealing with a tidal wave of e-mails and tasks throughout the day.  You can add a few dollars to the litigation bill already.

Or, the attorney could forward it to UR, right? This would, of course, usurp the role and responsibility of the adjuster and possibly even make the defense attorney a witness as to when the RFA was forwarded to UR.

All in all, it just creates a mess.

Now, what about the other way around – can we, as defendants, skip serving the injured worker and just serve his or her attorney with documents?  So when we’re seeking to dismiss for lack of prosecution (see California Code of Regulations 10582) we can just skip the requirement of informing the injured worker, right?  We can also send benefits directly to the applicant’s attorney’s office and all benefits notices too, right?

Well, if we tried to do that, we’d get an angry call to action by the applicants’ bar claiming to be overburdened with having to hold benefits in trust and with countless citations to the regulations and caselaw requiring strict obedience to the rules.

Your humble blogger submits that if a sauce is good for the goose, it’s good for the gander: the treating physician need only fax the RFA to UR or the administrator, as specifically spelled out in the regulations.  Whatever defendant’s failure to conduct a good faith investigation by not scouring the Earth for the RFAs that might be out there, such failures should not trigger the time restrictions for UR.  The same duty of good faith investigation existed when the Cervantes opinion issued, and the same rationale could have applied there but didn’t.