California: A Clarification on the Requirements for Expedited Review under AD Rule 9792.9.1

By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board

The June 13, 2024 edition of the LexisNexis Workers’ Compensation eNewsletter included an article that discussed the requirements of an expedited request for medical treatment and the utilization review (UR) of that request (see https://www.lexisnexis.com/community/insights/legal/workers-compensation/b/recent-cases-news-trends-developments/posts/california-when-is-an-expedited-review-of-a-treatment-request-required). The article focused on the panel decision in Castellanos v. Best Buy, Inc., 2024 Cal. Wrk. Comp. P.D. LEXIS 122.

Briefly, in Castellanos, the treating physician submitted a request for authorization (RFA) of medical treatment, including 12 visits to an outpatient transitional day treatment program encompassing physical therapy, occupational therapy, speech therapy, and neuropsychology. The treating physician marked the form to indicate that an expedited review of the RFA was required. The utilization review (UR) of that request was not completed within the 72-hour timeframe provided in Rule 9792.9.1 but was denied within the five-day period provided in subdivision (c)(3) of the rule. Applicant requested an expedited hearing, claiming that since the UR denial was untimely, the WCAB had jurisdiction to determine entitlement to medical treatment. Following the hearing, the WCJ issued a decision finding that UR was timely and, therefore, the WCAB lacked jurisdiction to consider the appropriateness of the recommended treatment. The WCJ explained that although the RFA was marked as requiring an expedited review, the treating physician did not substantiate the request with an explanation/documentation that applicant faced an imminent or serious threat to her health and safety such that a UR decision issued within the normal five-day timeframe would be detrimental to her health.

On reconsideration of that decision, an Appeals Board panel affirmed the WCJ and, in its Decision after Reconsideration, set forth the components of a request for expedited UR as follows: (1) the requesting physician must certify and document in writing the reason(s) why an expedited review is necessary; (2) the documentation must establish that the injured worker faces an imminent or serious threat to their health; or (3) that the normal five-day timeframe for UR would be detrimental to the workers’ health.

Since that article appeared, another Appeals Board panel has issued an Opinion and Order Denying Petition for Reconsideration that expands the components of a request for expedited UR review. The case is Correa v. Display Products, Inc., 2024 Cal. Wrk. Comp. P.D. LEXIS 198.

The Facts in Correa

Silvia Correa (applicant) sustained an admitted cumulative injury to her wrists, lumbar spine, respiratory disorder, and psyche during the period from March 28, 2008, to July 12, 2013, while employed by Display Products, Inc., insured by Travelers Property Casualty Company (defendant).

Dr. Shamie served as applicant’s primary treating physician. On July 12, 2023, defendant stipulated to provide applicant with four hours of home health care, seven days per week for a period of six months.

On February 16, 2024, Dr. Shamie submitted an RFA in which he requested home health care assistance 12 hours per day, seven days per week for a period of six months, along with transportation to medical treatment. Dr. Shamie marked the RFA as requiring expedited review.

Five days later, on February 21, 2024, defendant issued its UR indicating that the requested treatment was non-certified.

A trial was held on March 20, 2024, to consider whether defendant’s UR non-certification was timely and, if not, whether the requested treatment was medically necessary. Additional issues included whether expedited review was appropriate and based on substantial evidence; whether the WCJ could consider the rationale of the UR decision in determining medical necessity; and whether the prior stipulations of the parties regarding home health care were still in effect.

On April 3, 2024, the WCJ issued a decision. That decision found, in relevant part, that the UR non-certification was untimely because it issued more than 72 hours after the request, that the request for home health care and medical transportation was reasonable and necessary, and that there was no evidence that a medical professional reviewed the RFA within the 72-hour period required for an expedited review.

Defendant sought reconsideration, contending that the RFA failed to substantiate the need for expedited review, specifically, why there is a need for increased home health care beyond its prior agreement to provide four hours of home health care services per day, seven days per week for a period of six months. For this reason, defendant argued that its UR decision was timely because it issued within five days of the RFA.

The panel’s analysis 

In its Opinion and Order Denying Reconsideration (opinion), the panel reviews the statutory and regulatory underpinnings of the UR process. It begins that analysis by acknowledging that Labor Code section 4610, which established UR as the mandatory process to evaluate requested medical treatment within California’s workers’ compensation system, provides for the review of concurrent, prospective, or retrospective medical treatment requests within five days of the request. It further acknowledges the statute’s expedited review process, which must be conducted within 72 hours of a request if the employee’s medical condition is one in which the employee faces an imminent and serious threat to their health, or the five-day timeframe for acting on the requested treatment would be detrimental to their life or health or jeopardize their ability to regain maximum function (Lab. Code § 4610(i)(3).)

Next, the opinion references the regulations adopted by the Administrative Director (AD) that discuss the timeframes within which UR must be performed. AD Rule 9792.9.1(c)(3) requires the UR of concurrent and prospective medical treatment requests to be conducted within five business days of the RFA. Subsection (4) of the rule requires the UR of expedited medical treatment requests to be conducted within 72 hours of the RFA.

The opinion then explains its interpretation of Rule 9792.9.1. Specifically, that where an RFA is marked as requiring an expedited review, such review must be conducted within 72 hours of the request unless the RFA is not reasonably supported by evidence establishing that the employee faces an imminent and serious threat to their health. But where an RFA marked as expedited fails to make such showing, the timeframe for UR of the request is five business days.

The opinion then discusses the reasoning offered by the WCJ in support of his finding that the RFA in question required an expedited review. The WCJ framed the question before him as, “in a case where a doctor has designated a case for expedited review, who gets to determine whether that designation was appropriate, and at what point can that decision be made?” As the opinion then notes, the WCJ looked to the legislative intent behind the enactment of Labor Code section 4610 and concluded that the purpose of mandatory UR was to bolster California’s policy of providing injured workers with the highest quality of medical care by ensuring that medical professionals rather than non-medical personnel determine the reasonableness and necessity of requested medical treatment. To effectuate that intent, the WCJ reasoned that a medical professional rather than a claims administrator must determine whether the record supports the need for expedited review.

The opinion goes on to explain that there is support for the WCJ’s analysis and cites two Board panel decisions. The first citation is to R.J. Hall v. Western Medical (December 13, 2017, ADJ9619437) 2017 Cal. Wrk. Comp. P.D. LEXIS 581, in which an Appeals Board panel held that a defendant is not allowed to disregard the treating physician’s characterization of a request by simply declaring that an RFA did not meet the criteria for an expedited review. The second citation is to Diaz v. Pacific Coast Framers (August 14, 2023, ADJ14244911) 2023 Cal. Wrk. Comp. P.D. LEXIS 211. In Diaz, supra, an Appeals Board panel accepted as timely defendant’s UR determination, which issued five days after receipt of the RFA, and found that the request failed to substantiate a basis for expedited review because the review was conducted by a physician and specifically addressed whether the RFA established an imminent and serious threat to the injured worker’s health.

The opinion observes that there is no indication in the record of Correa that a medical review (i.e., a review conducted by a medical professional) to evaluate the necessity of an expedited review occurred. Further, the opinion notes an absence in the record of any action taken by defendant within the 72-hour period required in Rule 9792.9.1(c)(4).

The panel’s conclusions

The panel completes its analysis by concluding that under Rule 9792.9.1(c)(4), an RFA marked as expedited involves two determinations, both of which are medical. First, the reviewer must make an initial determination as to whether the request is reasonably supported by evidence establishing that the injured worker faces an imminent and serious threat to their health, or that the timeframe for non-expedited review would be detrimental to the injured worker’s condition. Second, the reviewer must determine whether the requested treatment is reasonably medically necessary, as supported by evidence-based medicine and applicable treatment guidelines.

Then the panel turns to the issue of who is best suited to make these determinations. With the observation that each of the two requisite determinations involve an evaluation of medical issues, including the urgency of the treatment, the severity of the injured worker’s condition, the likelihood of imminent or serious threat to the injured worker’s health, the interplay between evidence-based medicine and treatment guidelines and the requested treatment, the panel also concludes that a medical professional rather than a claims professional should make both determinations.

As to defendant’s claim that the RFA fails to establish why there is a need for an increase in the hours of home health care previously agreed to, the panel points out that the WCJ’s decision specifically addressed this contention and emphasizes the fact that Dr. Shamie described applicant as in need of extensive assistance with activities of daily living and characterized her husband’s caregiving as essential, integral, and vital in providing support for eating, bathing, dressing, grooming, transportation, and medical management. Based on these factors, the WCJ found the RFA to be consistent with treatment recommendations as outlined in applicable treatment guidelines. For these reasons, the panel concludes that the home health care services outlined in the RFA are medically reasonable and necessary.

The implications of Correa

While the panel opinion in Correa is not binding precedent, it makes a compelling argument that is consistent with the intent of the legislature in its enactment of UR as the mandatory process for determining the necessity and appropriateness of medical treatment requests. The rationale underlying the law is the belief that medical professionals are best suited to evaluate the necessity and appropriateness of treatment requests consistent with the principles of evidence-based medicine and applicable treatment guidelines. In recognition that an injured worker’s medical condition might require some medical treatment to be provided on an urgent rather than routine basis, the legislature also provided for an expedited review process to be conducted within 72 hours of the submission of the RFA. That process is embodied in Labor Code section 4610(i)(3) and Rule 9792.9.1(c)(4), which require the physician seeking review of a treatment request on an expedited basis to certify the request and provide written documentation as to the reason(s) why an expedited review is necessary by establishing that the injured worker faces an imminent or serious threat to their health, or that the normal five-day timeframe for UR would be detrimental to the workers’ health. (See Castellanos, supra.) Because review of an expedited RFA requires the UR reviewer to make two distinct medical determinations, that is, (1) is the request supported by medical evidence and (2) is the proposed treatment reasonable and necessary in accordance with evidence-based medicine and applicable treatment guidelines, such determinations are best made by a medical professional and not a claims professional. (Correa, supra.) Those conclusions are consistent with the stated legislative intent underlying UR. Moreover, they reflect common sense. They may not be binding, but it would behoove claims personnel to take them to heart.

Reminder: Board panel decisions are not binding precedent.

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