09 Jan 2015

California: Communication of UR Decisions to Treating Physicians Must Specify Nature or Content of Message

In Shanley v. Henry Mayo Newhall Memorial Hospital, 2014 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB panel rescinded the WCJ’s finding that the defendant’s 8/6/2013 utilization review (UR) determinations of a treating physician’s request for lumbar MRI and EMG were valid under Labor Code § 4610 (lexis.com) [LC 4610 (Lexis Advance)] and 8 Cal. Code Reg. § 9792.9 (lexis.com) [R 9792.9 (Lexis Advance)], and held instead that the UR determinations were invalid under Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298 (lexis.com) [79 CCC 1298 (Lexis Advance)] (Appeals Board en banc opinion) (Dubon II), and Bodam v. San Bernardino Department of Social Services (2014) 79 Cal. Comp. Cases 1519 (lexis.com) [79 CCC 1519 (Lexis Advance)] (Appeals Board significant panel decision), due to the defendant’s failure to timely communicate the UR decisions to the treating physician by phone, fax or email within 24 hours.

The WCAB further held that because the UR decisions were invalid, the issue of medical necessity of the requested treatment must be determined by the WCAB, and not Independent Medical Review, when the WCAB found that, although the defendant here met its burden of proving that the 8/6/2013 UR decisions were timely made under Labor Code § 4610(g)(1) within five business days of its 7/30/2013 receipt of the treating physician’s request for treatment authorization (because the third and fourth calendar days were Saturday and Sunday), and that the decisions were timely mailed to applicant, her attorney and the treating physician within two business days, the defendant failed to establish that the UR decisions were timely communicated to the treating physician by phone, fax or email within 24 hours pursuant to Labor Code § 4610(g)(3)(A) and 8 Cal. Code Reg. § 9792.9.1(e)(3) (lexis.com) [R 9792.9.1 (Lexis Advance)].

Here, the UR decisions merely stated that phone messages were “left” for the treating provider, without specifying the nature or content of the phone messages and consequently did not show that those messages were sufficient to give the treating physician notice that the defendant had denied the treatment requests, and statements that “[p]eer to peer [contact] was unsuccessful” further failed to prove that the UR decisions were communicated to the treating physician by phone within 24 hours after the UR decisions were made.

Read the Shanley panel decision.