WCDefenseCA

It’s Wednesday, dear readers – and you know that means… another blog post!

Today’s post is about everyone’s favorite topic – UR!  Often enough, we in the defense community are faced with a late UR report – maybe the vendor made a late determination; maybe the vendor made a late communication; maybe the vendor was late with both!

When faced with this situation, and while trying to avoid an order to provide medical treatment, lots of options are available.  For example, you could sneak into applicant’s attorney’s home and turn all the clocks and calendars back one day, replacing all newspapers with copies of yesterday’s edition and then trying, with one’s best poker face, to convince opposing counsel that the report was actually on time… (just a joke, dear readers, please don’t actually sneak into anyone’s home!)

In the recent pane decision of Hill v. California Highway Patrol, defendant argued that the underlying RFA was defective itself.  To wit, defendant argued that the RFA was invalid because it did not cite the Medical Treatment Utilization Schedule (MTUS).

The treatment in question was a “back defender” system to help applicant-investigator carry his duty belt which weighted heavy on his back, the subject of a stipulated award from 2008.  The system would essentially transfer the 25 pounds of the duty belt from applicant’s hip and back to his shoulders.

Not The Back Defender – But it Would Be Awesome if it Was!

Defendant argued that unless the treating physician’s RFA either cites the MTUS or explains why the MTUS doesn’t apply, the RFA is invalid.  The WCJ disagreed, citing, instead Sandoval v. San Diego Unified School District (a 2016 panel case) where the commissioners held that “a requesting physician’s report need not cite to the MTUS in order to comply with Labor Code section 4604.5.”

So, what did the commissioners do with this one?

The commissioners ruled that, much like the WCJ opined, the defendant had blown the deadline for a valid UR determination.  However, the PTP’s recommendations are still subject to the standards of Labor Code section 4610.5(c)(2).  Specifically, the employee bears the burden of proving that the treatment is reasonably required, and the underlying RFA must “refer to any applicable standards under section 4610.5(c)(2) to support his opinion that the Back Defender System is reasonable and necessary.”

The WCAB ordered the matter to return to the trial level for the WCJ to conduct further discovery to develop the record.

Now, here’s something that’s a bit unfair to the defendants.  In her report and recommendation, the WCJ opined that “[a]ny UR determination made now on the request for a back brace would be untimely… since utilization review was not conducted within five working days of the [PTP’s] request, it is too late to conduct it now.”  And that’s fair – it’s too late for the defendant to conduct UR.

However, shouldn’t it also be too late to conduct any further discovery?  Why should the PTP get an opportunity to cure any defects in his RFA with a supplemental report if it is too late for defendant to cure an untimely UR?  As it stands now, it is very likely that applicant cannot carry his burden of medical necessity without further evidence – such as a more detailed report from the PTP.

That aside, this back defender system runs about $200, which might get eaten up with one UR and one IMR.  The back defender system or the particular treatment in this case is not the point.  The point is that less money could be spent on litigation and more money on providing benefits if treating physicians did the leg work to justify their recommendations in the RFA.  If the request for authorization cannot be justified medically, then perhaps the request should not be made.

Unfortunately, as it stands right now, there does not appear to be any binding authority that can be cited for the proposition that the RFA must cite the MTUS to trigger defendant’s UR obligations.