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.

So, as this humble blogger’s beloved readers are very well aware, California Code of Regulations section 9792.6, subsection o, requires a primary treating physician’s “Request for Authorization” of medical treatment to be made on a PR-2 form “or in narrative form containing the same information required in the PR-2 form.”  In fact, the Workers’ Compensation Appeals Board, in Cervantes v. El Aguila Food Products (2009; en banc) held that, at least for spinal surgery, a request for authorization “must comply with AD Rule 9792.6(o)”.

So then, consider, the curious case of Stefano Musetti (Musetti v. Golden Gate Disposal & Recycling).  There, applicant’s primary treating physician requested authorization for total knee replacement surgery.  Although the PTP used the PR-2 form, he did not check “surgery or hospitalization” or “request for authorization.”

The report, dated September 20, 2012, was served on defendant by applicant’s counsel on October 26, 2012, and then the defendant objected, and wrote to the panel QME requesting his opinion, on December 4, 2012.  So, assuming 5 days for mailing, defendant received the “request for authorization” on October 31, and waited until December 4, 2012 to request a report from the PQME.

The WCJ, over defendant’s objection, allowed an expedited trial on the issue to go forward, and then found that “Defendant has been in receipt of this report and has delayed in forwarding the report to the panel QME,” and awarded the surgery.

So, in short, the primary treating physician didn’t properly fill out a PR-2 form, and the defendant took too long, by waiting one month, in forwarding the report to the PQME.

In reviewing the case and denying defendant’s petition for reconsideration, the WCAB reasoned that the issue of whether one month was too long to wait should not have been reached, because defendant did not first conduct Utilization Review.  But was there an obligation to refer the faulty request for authorization to UR in the first place?  After all, if the doctor had faxed a post-it note with the applicant’s name, the doctor’s signature and the word “TKA” (Total Knee Anthroplasty) to the defendant… would that have counted as a valid request for authorization?

Well, the WCAB noted that “by the time of defendant’s November 18, 2012 [objection] letter, however, defendant had apparently examined Dr. Forster’s request and realized that he was seeking authorization for surgery.”

So, what do you do when you have a faulty request for authorization?  According to this panel opinion, what you DON’T do is engage in half-measures: Either ignore it like you would a post-it note faxed to your office, or process it through Utilization Review and proceed with IMR.

By writing an objection or going to a PQME, or doing anything that would seem prudent in a reasonable world and a fair system, you are acknowledging that you understand that this is a request for authorization of treatment, and the reasoning of Cervantes falls away (“Rule 9792.6(o) … recognizes that claims adjusters routinely receive numerous medical reports from treating physician.  Therefore, if in a spinal surgery case a particular report might trigger the 10-day deadline 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.”)

But, remember, dear readers, the WCAB also bent over backwards to accommodate an applicant in the matter of Valerie Morales v. General Design Concept, where the WCAB treated the applicant’s DOR as an objection to Utilization Review, allowing the applicant to then request a PQME opinion on the issue of medical treatment, even though the time to make a specific objection to the UR determination had gone the way your humble blogger’s youth and optimism.

So, no “gamesmanship” – once you realize this is a request for authorization, put it through UR before you do anything else.  And, if your claims office or defense firm has a long procedure before incoming mail reaches the desk of the adjuster or attorney handling it, perhaps protocols should be put in place to highlight PR-2s or medical reports that request authorization.

Happy Monday, dear readers!  The Holidays are upon us!  Channukah (Hag Sameach to my Jewish readers!) came to a close over the weekend, and Christmas is just around the corner (Feliz Navidad!)

Always eager to please, your humble blogger has prepared this post to get you into the festive spirit with a lump of coal for all the naughty lien claimants in California’s workers’ compensation system.  Now, granted, in certain parts of the world, a lump of coal is a wonderful gift that will literally keep the family warm on Christmas, but in California, coal isn’t going to help pay for any lien claimant’s vacation home or golden back-scratchers.

What is this lump of coal?

Well, often enough, lien claimants complain and complain about unpaid “medical” bills even though the treating physician had prescribed there much-needed “chanting therapy” or “television-based rehabilitation.”

Well, California Code of Regulations section 97292.6, subsection (o), specifically lays out what the treating physician needs to do in order to request authorization for treatment.  That includes filling out the PR-2 form or a narrative report containing all the information on the PR-2 form with a “request for treatment” across the top of the first page.

Well, no more!  For injuries occurring after January 1, 2013, or requests for treatment made after July 1, 2013, any request for authorization will have to be made on the section 9785.5 Request for Authorization form.  Assuming the proposed regulations are approved, narrative reports will no longer be sufficient – the form will have to be used.  And, if the form is not used and filled out with all “mandatory fields” (proposed regulation section 9792.6.1(o)), the defense will not have an actual request for authorization of treatment.

Another interesting aspect of these proposed regulations is that, just over fifty years after the first e-mail was sent, the regulations now recognize that e-mail is an appropriate way of communicating information.  Reports and requests for authorization can now be transmitted by mail, facsimile, or e-mail (carrier pigeon ended up on the chopping block).

This is actually a negative for most of us on the defense side – your typical adjuster is overworked and swamped with letters, faxes, and e-mails… this may make it possible for more treatment requests to fall through the cracks.

There are more proposed regulations, dear readers, and more on the way, but hopefully we’ll have a grip on these “reforms” before too long!

What happens when the defense does not comply with Labor Code section 4610?  Well, if you ask a lien claimant or one of their reps, the answer is pretty clear – there may be good in the world, there may be evil; some things may be right, or may be wrong; it’s even possible for the world to be flat… but if the employer fails to go through the UR dance, the lien claimant automatically gets paid and the adjuster has to watch the lien-claimant drink a delicious milkshake and isn’t allowed to ask for a sip.

The Workers’ Compensation Appeals Board has a slightly different take on the issue.

Labor Code section 4610 lays out the general rules regarding Utilization Review.  In the case of Thomas Coffin v. Robert Munson, Inc., a lien claimant sought to have the employer’s insurance company pay out for various self-procured medical treatment items after the insurer declined to pay for Utilization Review.

Unimpressed with lien-claimant’s bill, the defendant allowed the matter to proceed to a trial and presented no evidence.  Lien-claimant, on the other hand, presented evidence of various physicians prescribing the medications that lien-claiming provided over a 25-month period.  As the trial was nearing a close, lien-claimant was dreaming of how it would spend its $27,411.35 as claimed in the lien… until that fantasy bubble was burst by the workers’ compensation Judge’s finding in favor of the defense.

Lien-claimant had failed to provide documentation that any of the prescribing physicians were applicant’s primary treating physician as required by Labor Code section 4600.  In fact, lien-claimant failed to provide any documentation that any of the physicians prescribing the medication provided by lien-claimant were the primary treating physician at any point.

Furthermore, there was no evidence that the reports requesting the treatment were served on the defense or that they complied with California Code of Regulations section 9792.6(o).

In denying the lien-claimants petition for reconsideration, the WCAB incorporated the WCJ’s report.

Adjusters are often overworked and spend their days watching the piles of papers stack up around them as they scramble to keep up.  So, naturally, it is often easy to send everything to Utilization Review.  Sometimes, that doesn’t happen, but that doesn’t automatically mean that the defendant becomes liable for the requested treatment.

As this case shows, the burden is always on the lien-claimant to prove that the treatment was reasonable and necessary.  And for treatment to be reasonable and necessary (read: paid for by the defense) the primary treating physician needs to be in the picture.  That wasn’t the case here and the defense managed to dodge over $27,000 in bills.

California Workers’ Compensation Defense practice offers few victories – but when they appear, they are sweet and make the whole effort worthwhile.

A recent decision from the Workers’ Compensation Appeals Board, Tomei v. Bay Alarm Company, addressed the application of California Code of Regulations section 9792.6(o).  As some readers might recall, earlier this month your humble author did a post on what constitutes a procedurally proper request for medical treatment.

The skinny:  A request for spinal surgery made in a narrative report must have the words “request for spinal surgery” clearly written by the surgeon across the top of the first page.

Applicant’s treating physician recommended spinal surgery, but the report in which the recommendation was made was in narrative form.  Although CCR 8 § 9792.6(o) allows requests for treatments to be made this way, it also requires “the document [to be] clearly marked at the top that it is a request for authorization.”

This treating physician didn’t mark the narrative report as required by § 9792.6(o), so applicant’s attorney did this for him in blue ink!  The report was sent to defendant with the words “request for treatment” hand-written across the top of the first page by the applicant’s attorney.

The WCAB held that the failure of the surgeon to clearly mark that the narrative report is a request for spinal surgery prejudices the defendant.  Therefore, the letter of the law applies.

In California Workers’ Compensation practice, defendants are given relatively little time to deal with spinal surgery requests.  The lesson here is that, when the physician requesting the treatment does not follow proper procedures, the defendant is shielded by the law.

As a habitual cynic, I can tell you that it is easy to become a perpetual cynic if you don’t keep your pessimism in check.  Cases like this one serve as an example of why it is important to fight for every inch of the relatively limited territory the law affords defendants.

Under Labor Code § 4600, the insurer or self-insured employer must provide medical treatment “reasonably required to cure or relieve the injured worker from the effects of his or her injury” or else face the risk of having to reimburse the employee for his or her visits to Dr. McOver-Prescribe.

But at what point do the adjuster’s duties of approving the treatment or undertaking the expense of Utilization Review kick in?  For example, if a chiropractor calls the adjuster and says “Jim needs 100 more treatments of Placebo-tox” or “your employee Kathy would really benefit from my patented Medo-Widget,” must the adjuster act?

Or what if you open your mail and there is a note from a treating physician, simply saying “please authorize treatment X”?

Labor Code § 4603.2(a) states that the employee’s treating physician “shall submit a report to the employer within five working days of the initial examination and shall submit periodic reports at intervals that may be prescribed by rules and regulations adopted by the administrative director.”

So what regulations have been adopted by the administrative director?  Take a look at 8 CCR § 9792.6 (o).  This sets out the requirements for a request for treatment.  If the request is made orally, such as in a telephone call, it must be followed by a written request within seventy-two hours.

The written requests (both as originals and as the follow-up) must be on forms PR-1 or PR-2.  Otherwise, the request must be in a narrative, containing the same information as a PR-2, and “the document shall be clearly marked at the top that it is a request for authorization.”

In other words, if the proper procedure is not followed, no soup for you!