California: Continuation of Treatment Previously Certified by Utilization Review

Who has the burden of proof and what must be shown before a unilateral termination of treatment?

It’s been nearly a decade since the California Legislature adopted utilization review (UR) and independent medical review (IMR) as the new paradigm for resolving workers’ compensation medical treatment disputes. Ten years should be ample time to resolve all of the intricacies of UR. Nonetheless, many aspects of the UR-IMR process continue to confound, especially when it comes to those cases in which the treating physician requests approval for the continuation of treatment modalities that were previously authorized through UR. Among the relevant questions raised are: Who has the burden of proof and on what issue(s)? Does the injured worker have to prove that the requested treatment is reasonable and necessary if the treatment was previously approved through UR? Can the employer unilaterally terminate medical treatment it previously approved through UR? Are there any prerequisites to an employer’s unilateral termination of previously certified treatment? Such questions along with other related matters are addressed by a unanimous Appeals Board panel in Zepeda v. Starview Adolescent Center, 2022 Cal. Wrk. Comp. P.D. LEXIS 166 (Board Panel Decision).

Background of Case

Armando Zepeda (applicant), while employed as a teacher on July 30, 2018, sustained an injury arising out of and occurring in the course of his employment to his brain and head as the result of a fall. Dr. David Patterson M.D. is applicant’s primary treating physician. In early June 2020 Dr. Patterson requested authorization for treatment of applicant in an inpatient residential rehabilitation treatment program at Casa Colina from June 4, 2020 to August 24, 2020. The requested inpatient residential treatment, which included physical therapy (PT) and occupational therapy (OT), was certified by defendant’s UR program. The clinical rationale in support of the certification noted that applicant suffered a mild traumatic brain injury, with loss of consciousness, and has active suicidal ideation, major depression, and chronic and severe post-traumatic stress disorder. Under applicable guidelines, residential transitional treatment is appropriate where the patient can benefit from intensive therapy, such as requiring treatment from multiple rehabilitation disciplines, like PT and OT; medically complex treatment; where the patient is unsafe; and where family members are unable to provide the level of care needed. Noting applicant’s history of mild traumatic brain injury, prior treatment, and current psychological status, the certification found applicant met the criteria set forth in the guidelines, which generally allow such treatment for up to 120 days in the case of mild traumatic brain injury and up to 240 days in more severe cases.

Applicant’s inpatient residential rehabilitation at Casa Colina was extended beyond the initial certification. On February 18, 2021, Dr. Patterson submitted a new request for authorization of a continuation of inpatient residential rehabilitation. UR denied certification of the request. The UR denial justified its decision with the explanation that although there were barriers to discharge, including anger management, impulse control, oversensitivity to interpersonal stimuli, and increased suicidal ideation, applicant had made progress in his ability to concentrate, problem solve, and increased endurance. Further, the UR denial stated that applicant had received a total of 148 days of inpatient residential rehabilitation, which exceeded the guidelines by 28 days.

Dr. Patterson submitted a new request for authorization of applicant’s continued inpatient residential rehabilitation at Casa Colina on March 17, 2021. UR denied the request on March 18, 2021. Dr. Patterson appealed the denial. In his appeal Dr. Patterson references an August 25, 2020 report from the PQME in neurology and explains that applicant was admitted to Casa Colina due to the neuropsychologial/psychiatric disorders caused by his traumatic brain injury and which “are still ongoing today.” He further states that the treatment provided by Casa Colina is consistent with applicable guidelines, and since there has been no change in applicant’s condition or circumstances, the denial of certification should be reversed. He references Dr. Franc’s August 25, 2020 PQME report as medical justification for continuation of treatment.

On March 30, 2021, UR granted the appeal and modified the denial to certify an additional 30 days of inpatient residential rehabilitation treatment. UR justified its decision with the explanation that medical records support applicant’s continued treatment at Casa Colina. It also stated that any additional requests for continuation of the treatment should be made seven days prior to the expiration of the certification.

Dr. Patterson made a subsequent request on April 22, 2021 for approval of an additional 60 days of inpatient residential rehabilitation at Casa Colina. This request sought an expedited review, which is the appropriate mechanism when an employee faces an imminent and serious threat to his or her health. Defendant denied the request on April 23, 2021. The UR denial states that even though the provider reported that applicant had a recent increase in unpleasant ideation, there is no evidence of measurable improvement, and without any indication of continued benefit, additional days of treatment are not warranted.

Applicant’s appeal of the April 23, 2021, UR non-certification was denied on April 28, 2021. The rationale given for the denial of applicant’s appeal is that guidelines support continuation of treatment where there is likelihood of achieving goals. But, where there is an inability to pass a rehabilitation plateau, the guidelines support discontinuation of the treatment. The denial further notes that applicant is not making progress and, perhaps, may need to be in a different setting.

On May 14, 2021, Dr. Patterson requested continued approval of applicant’s inpatient care at Casa Colina for 60 days based on an imminent and serious threat to applicant’s health, but the request was denied without medical review on the basis of the prior (April 28, 2021) UR appeal denying certification. Dr. Patterson’s subsequent requests for approval of continued inpatient treatment at Casa Colina were cancelled and/or withdrawn from UR by defendant for lack of any documented change in applicant’s condition since the April 28, 2021 decision.

Expedited Hearing

Applicant requested an expedited hearing, contending that absent a documented change in his condition or circumstance showing that continued inpatient transitional rehabilitation treatment at Casa Colina is no longer reasonably required, defendant cannot unilaterally deny such treatment, citing Patterson v. The Oaks Farms (2014) 79 Cal. Comp. Cases 910 (Appeals Bd. Significant Panel Decision). Defendant argued that the Medical Treatment Utilization Review Schedule does not support such continued treatment and, further, that UR and IMR is the exclusive process to resolve the dispute.

A trial was held and the WCJ issued a decision finding that Patterson, supra, does not apply, and applicant’s sole remedy is UR and IMR.

Petition for Reconsideration

Applicant then sought reconsideration, arguing that Dr. Patterson’s February 18, 2021, March 17, 2021, April 22, 2021, and May 14, 2021 requests all sought to continue ongoing inpatient treatment previously authorized by defendant, and without substantial medical evidence of a change in his condition or circumstances, defendant is prohibited from unilaterally terminating the treatment. Additionally, applicant argued that the WCJ failed to determine whether defendant discontinued his inpatient care without an agreed upon safe discharge plan in violation of Labor Code § 4610(i)(4)(c).

Board Panel Decision

In its opinion, the panel revisited its holding in Patterson, supra, which found that an employer may not unilaterally cease to provide previously authorized reasonable and necessary medical treatment to an industrially injured worker without substantial medical evidence of a change in conditions or circumstances. The panel explains Patterson’s underlying rationale: that an employer’s authorization of specific treatment is an acknowledgement that such treatment is reasonable and necessary to cure or relieve the effects of the industrial injury. When continuation of the authorized treatment is at issue, it is the defendant employer’s burden, not applicant’s, to show that continuation of treatment is no longer reasonable or necessary due to a change in applicant’s condition or circumstances. The panel also emphasized Patterson’s conclusion that defendant cannot shift its burden onto applicant by requiring a new request for authorization to continue the previously authorized treatment.

Next, the panel reviewed the WCAB’s decision in Nat’l Cement Co., Inc. v. Workers’ Comp. Appeals Bd. (Rivota) (2021) 86 Cal. Comp. Cases 595 (writ den.). Rivota followed the rationale of Patterson, supra, and rejected defendant’s claim that it did not intend to authorize the injured worker’s inpatient care for an indefinite period of time, nor had it relinquished its right to seek UR of ongoing and continued treatment.

The panel then examined the specific circumstances giving rise to the treatment dispute in this case within the context of Patterson, supra, and Rivota, supra. It explains that the June 26, 2020 UR certification approving Dr. Patterson’s request for authorization of inpatient transitional rehabilitation treatment at Casa Colina is a finding that the approved treatment is reasonable and necessary to cure or relieve the effects of the injury. Continuation of that treatment was subsequently authorized by defendant over several months. On February 18, 2021, Dr. Patterson requested approval for further continuation of the ongoing treatment from March 1, 2021 to March 31, 2021. Defendant acknowledged barriers to applicant’s discharge but denied the request anyway because applicant had apparently exceeded guidelines by 28 days. Similarly, defendant denied Dr Patterson’s March 17, 2021 request for authorization of applicant’s continued inpatient treatment on the basis that applicant’s progress was very limited and no new medical information was submitted to justify reintroduction of the treatment. In his appeal of that denial, Dr. Patterson emphasizes that the request was not for a reintroduction of treatment but for continuation of ongoing treatment. He further emphasizes that inpatient treatment is consistent with guidelines for a traumatic brain injury and that there has not been a change in applicant’s condition or circumstances. In response to the appeal, defendant did authorize an additional 30 days of inpatient treatment. However, defendant denied and/or failed to take action on Dr. Patterson’s efforts over the ensuing months to obtain approval for applicant’s continued inpatient treatment, relying on its previous denials.

Based on the record summarized above, the panel concluded that the circumstances in this case fall squarely within Patterson, supra, and Rivota, supra. Once defendant authorized applicant’s inpatient treatment as reasonable and necessary to cure or relieve the effects of his traumatic brain injury, it was prohibited from subjecting subsequent requests for a continuation of the treatment to UR absent substantial evidence of a change in applicant’s condition or circumstances. The February 2021, March 2021, April 2021, and May 2021 requests did not seek new or different treatment modalities but sought approval simply for a continuation of ongoing treatment. Defendant’s denial of those requests acknowledged a lack of change in applicant’s condition or circumstances and was based entirely on the fact that inpatient treatment had exceeded guidelines. Further, apparently defendant chose to ignore the opinions of the Neurology PQME, since the UR denials fail to mention those reports and the justification they provide for applicant’s continued inpatient treatment. The panel rescinded the WCJ’s decision and issued a new decision that applicant is entitled to a continuation of inpatient transitional rehabilitation care at Casa Colina until such time as defendant establishes a change in his condition or circumstances that warrants discontinuation of the treatment.

Next, the panel addresses whether the WCJ inappropriately concluded she did not have jurisdiction to consider applicant’s claim that defendant violated Labor Code § 4610(i)(4)(C). That provision, which pertains to UR, provides that in a case of concurrent review of requested treatment, medical treatment shall not be discontinued until the employee’s physician has been notified of the decision and a care plan has been agreed upon that is appropriate for the medical needs of the employee. First, the panel examines the timeliness of defendant’s denial of Dr. Patterson’s May 14, 2021 request for expedited review and approval of applicant’s continued inpatient treatment, since WCAB jurisdiction to address that issue is contingent on an untimely UR decision. (See Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298 (Appeals Bd. en banc) (writ den.) (Dubon). Because Dr. Patterson’s request involved concurrent treatment, defendant was obligated to issue its decision in a timely manner that is appropriate for the nature of the employee’s condition but not to exceed 72 hours. Defendant denied the request three days after its receipt. However, since the request indicated an immediate and serious threat to applicant’s health, the panel reasoned that a three-day delay was untimely and the WCJ had jurisdiction to consider whether defendant violated Labor Code § 4610(i)(4)(C).

The panel observes that not only did defendant fail to engage with Dr. Patterson on a care plan appropriate for applicant’s medical needs, the record before it (Dr. Patterson’s May 14, 2021 report) indicates that applicant does not have a safe discharge location because his family is afraid to accept him back in the home due to behavioral/psychological issues. In its decision, the panel substitutes a new finding that applicant is entitled to continued inpatient treatment until a care plan appropriate for his medical needs has been agreed to by Dr. Patterson.

Final Takeaways

As a panel decision, Zepeda is not binding precedent. Nonetheless, are there conclusions that we can and should draw from it? The answer is yes. The Zepeda panel makes manifest that Patterson, supra, and Rivota, supra, remain compelling authority when continuation of authorized ongoing treatment is at issue. Additionally, the panel provides us with a simple and clear framework to resolve similar disputes. Foremost, when a defendant authorizes a specific form of treatment through UR, the authorization is an implicit agreement that the authorized treatment is reasonable and necessary to cure or relieve the effects of the employee’s industrial injury. Once treatment has been authorized, if the treating physician requests a continuation of the treatment, the burden shifts to defendant to show by substantial medical evidence that continuation of the treatment is no longer reasonably required due to a change in applicant’s condition or circumstances. Defendant cannot shift its burden onto applicant by requiring a new request for authorization of the ongoing treatment. Furthermore, prior to discontinuing approved treatment, the defendant employer is obligated to notify the treating physician of the impending discontinuation and reach agreement with the treating physician on a care plan that is appropriate for the medical needs of the employee.

Reminder: Board panel decisions are not binding precedent.

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