WCDefenseCA

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.

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.

Welcome back from your weekend, dear readers!  The rains are a ‘coming.  The cold is setting in.  Turkey day is almost upon us, which, of course, means that we can expect a flood of “Black Friday” related injuries and Christmas decorations starting November 28.  But, before we look too far ahead, there’s this Monday, and a “Significant Panel Decision” issued by the WCAB.

This one is on the subject Utilization Review, which continues to be somewhat of a clumsy, frequently mutating wolf in the deep dark woods of workers’ compensation.

It makes sense – no? Arguably the most expensive and most valuable benefit available to injured workers is the potentially limitless medical treatment.  The UR-IMR procedure puts a pretty solid clamp-down on this, no?

In the matter of Bodam v. San Bernardino County, the issue of UR timeliness was again explored, as UR timeliness appears to be the only effective challenge to UR nowadays (other than a vigorous applicant’s attorney repeatedly changing treating physicians until the requested treatment is authorized).

Applicant’s primary treating physician requested authorization for a three-level fusion surgery by facsimile (the request was made by facsimile, the procedure was not to be performed over facsimile), and defendant referred the request to Utilization Review that same day.  The UR vendor denied treatment three days later, and defendant mailed the decision five days after that (on the eighth day after the request was made).

So what’s the big deal?  Treatment was timely denied… right?  Not so much.

The WCAB held, in this significant panel decision, that the timelines for communicating the decision are equally mandatory.  The WCAB cited Labor Code section 4610(g)(1) noting that a UR decision “to approve, modify, delay, or deny requests by physicians for authorization prior to … the provision of medical treatment services to employees shall be communicated to the requesting physician within 24 hours of the decision.  Decisions 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…”

In other words, if UR denies, modifies, or delays a request prior to the treatment being provided, then the decision has to be faxed or called in to the doctor within 24 hours.

Do not go to IMR; do not collect $200; go directly to WCAB Medi-Jail.

The WCAB held that the defendant’s UR process was defective because the UR decision was not communicated to the doctor within 24 hours of reaching a decision, AND because it was not communicated in writing to the injured worker, the applicant’s attorney, and the doctor within 2 business days of the decision being made.

The WCAB then held that the WCJ properly ordered development of the record prior to making a determination as to the merits of the request for authorization.

Your humble blogger is aware that some UR vendors immediately fax and mail out the determination directly to the injured worker, requesting physician, applicant’s attorney, adjuster, and even defense attorney.  Perhaps this is a good practice for all UR vendors to adopt?