Written Requirement Waived for Applicant Objections to Utilization Review?
In the recent case of Valerie Morales v. General Design Concepts, the Workers’ Compensation Appeals Board granted defendant’s petition for removal where the Workers’ Compensation Judge allowed applicant to proceed directly to trial on the issue of entitlement to certain medical treatment, without first going through the process outlined by Labor Code section 4062.
Applicant’s treating physician recommended surgery for an admitted 2007 cumulative trauma injury which had been settled by stipulations with need for further medical treatment.
Defendant forwarded the request to Utilization Review, and the UR determination did not certify the request, leading defendant to decline to approve the treatment recommendation.
Applicant then filed a declaration of readiness to proceed for expedited hearing, and the WCJ set the matter for trial. Defendant petitioned for removal, arguing that applicant never objected to the UR determination in writing, as required by Labor Code section 4062, nor did applicant request a panel, as required by the same.
The WCAB granted the petition for removal, but (this is where your dedicated blogger becomes a bit unhappy) orders that the trial be taken off calendar and applicant be given an opportunity to be evaluated by the panel qualified medical evaluator.
Applicant missed her deadline – she is represented and twenty days passed from the UR determination without a written objection on her part. The show is over – her objection is waived. NO – SOUP – FOR – YOU.
Somehow, applicant’s procedural failings are translated into a time extension. Even though applicant made no written objection to the UR determination, the WCAB reasoned that “[i]n this case, it is apparent that applicant objects to the UR determination.” By that rationale, an angry phone call from the applicant would satisfy Labor Code section 4062 as much as an applicant “notify[ing] the other party in writing of the objection.”
Hopefully this will not become a common interpretation of the law.
For extra credit, guess which venue issued the same type of ruling for a defendant who failed to meet a statutory deadline to object to a medical determination? There is only one where such a thing happens… If you guessed the FLO Board, you are right!