California: W.C.A.B. Publishes New UR Timeliness Decision

The W.C.A.B. has issued a Significant Panel Decision* reaffirming its language in Dubon v. World Restoration (Dubon II) regarding the W.C.A.B.’s ability to determine medical issues where UR is not completed in a timely fashion and also provided a detailed discussion as to the necessary steps for UR to be timely.  In Timothy Bodam v. San Bernardino County/Dept of Social Services [2014 Cal. Wrk. Comp. LEXIS 156] the Board, in denying a Petition for Removal from defendant from an order to develop the record on the issue of applicant’s need for surgery, ruled that timeliness of UR is an issue for the W.C.A.B. to determine and if UR is not timely, the W.C.A.B. has jurisdiction to decide the issue of medical necessity.  In determining if UR is timely, the W.C.A.B. also determined that each individual element of the step by step process for UR must be timely, not just the end result:

(1) A defendant is obligated to comply with all time requirements in conducting UR, including the timeframes for communicating the UR decision;

(2) A UR decision that is timely made but is not timely communicated is untimely;

(3) When a UR decision is untimely and, therefore, invalid, the necessity of the medical treatment at issue may be determined by the WCAB based upon substantial evidence.

In the subject case, a Request for Authorization of prospective treatment (spinal surgery) was communicated to the claims administrator on October 28, 2013.  On October 31, 2013 the UR provider for defendant determined the requested surgery was not medically indicated.  Letters communicating the denial of authorization were sent on November 5, 2013.  There is no evidence that the UR determination made on October 31, 2013 was ever communicated to the physician with 24 hours of the decision.

Labor Code § 4610 subsection (g) provides detailed timeframes for completion of UR and also communication of the decision in a multi-step process.  While the decision to authorize, delay, deny or modify an RFA for medical treatment must be made within 5 business days, there are also specific timeframes for communication of the determination.  Labor Code § 4610(g)(3)(a) specifically provides:

“…the provision of medical treatment services to employees shall be communicated to the requesting physician within 24 hours of the decision. Decisions resulting in modification, delay, or denial of all or part of the requested health care service shall be communicated to physicians initially by telephone or facsimile, and to the physician and employee in writing within 24 hours for concurrent review, or within two business days of the decision for prospective review, as prescribed by the administrative director.”

AD Rule 9792.9.1(e)(3) provides additional clarification of the necessary communication steps under Labor Code § 4610g:

“[A] decision to modify, delay, or deny shall be communicated to the requesting physician within 24 hours of the decision, and shall be communicated to the requesting physician initially by telephone, facsimile, or electronic mail. The communication by telephone shall be followed by written notice to the requesting physician…within two (2) business days for prospective review…”

In this matter, the initial determination regarding medical treatment was made within the statutory timeframe; however, the Board noted there was no evidence that the UR determination was communicated by phone, fax or email within 24 hours to the physician nor written notice of the decision.  Furthermore, the letters to the physician, applicant attorney and applicant, which issued on November 5, 2013, were not issued with 2 business days of the UR determination.

“In the present case, the RFA was received on October 28, 2013 and the UR decision was timely made three days later on October 31, 2013. However, a UR decision not only must be timely made; it must be timely communicated. A UR decision that is not timely communicated is of no use and defeats the legislative intent of a UR ‘process that balances the interests of speed and accuracy, emphasizing the quick resolution of treatment requests …’ (Sandhagen, supra, 44 Cal.4th at p. 241.). Thus, section 4610(g)(3)(A) imposes further mandatory time requirements for communicating a UR decision. These time limits run from the date the UR decision is made, even if the UR decision is made in less than the five days allowed under section 4610(g)(1).”

Having determined that the UR decision was not timely communicated (even though timely made), the W.C.A.B. holding in Dubon II provided authority for the WCJ to determine the appropriateness of medical treatment.  As noted in Dubon II, simply because the WCJ has authority to determine the issue of medical treatment does not mean treatment is automatically awarded.  In this case the WCJ determined there was no substantial evidence to make a decision on whether surgery was appropriate and ordered further development of the record by means of a supplemental report from the requesting surgeon.  It was from the order to develop the record further that this case was presented to the W.C.A.B. on defendant’s Petition for Removal.  The Petition was denied by the W.C.A.B. in this decision and the matter therefore continues at the trial level as ordered.

COMMENTS AND CONCLUSIONS:

Given the W.C.A.B.’s holding in Dubon II, this case should not come as much of a surprise.  Once the main principle is established -- the requirement to complete UR in a timely fashion as a prerequisite to valid UR -- the statutory provisions are seen as mandatory.  I do say not “much” of a surprise since I think many of us have assumed that as long as the end product of UR was timely (a decision within 5 business days followed by written notice to the physician, attorney and IW that issued no later than the 7th business day), UR would be valid.  Now we know that it is not just the end result that matters but the individual components.  In effect there are 3 different statutes of limitations within the UR process that have to be met, with 2 being just on the communication of the determination.   

1. 5 business days to arrive at a determination to authorize, delay, deny or modify the requested treatment

2. 24 hours from the decision being made to communicate by phone, fax or email to the physician

3. 2 business days from the phone, fax or email to the physician to provide written notice of the determination to the parties.

Clearly it becomes mandatory that UR providers include in their UR determinations information that documents compliance with the notification procedure, specifically when the UR determination was made and when it was communicated to the physician to avoid challenges to the timing of the UR process.  Additionally it becomes important that UR vendors make certain that their reviewing physicians are aware of these very strict timeframes and not only comply but document compliance.

Of course all of the above is also dependent on the appellate courts upholding the W.C.A.B.’s ruling in Dubon II (and now this case) that a defect in the timing of UR, no matter how trivial, gives jurisdiction to the W.C.A.B. to determine medical issues.  Because the issue was not really raised in the Dubon case (it was acknowledged that UR was timely completed in that case), there was no ability to raise the Board’s ruling to the appellate level from that case.  The last vestige of the W.C.A.B.’s ability to made medical determinations, in spite of the legislature’s strongly expressed desire to relieve the W.C.A.B. of this ability, is based on timeliness of Utilization Review.

However, this case may very well provide the vehicle to just such a challenge should defendant elect to take it up.  The case also presents a much more favorable fact pattern than did Dubon II for appellate review from a defendant’s perspective.  A strong argument can be made the legislative intent expressed in SB 863 that medical decisions were to be made by medical professionals applies to ALL determinations on medical issues.  The timeliness of UR does not appear to many of us to be a reasonable basis to override this strongly expressed public policy.  An argument can also be made that just because the W.C.A.B. can decide the issue of validity of UR based on timeliness does not necessarily extend the authority to determine medical treatment.  A much more expeditious process might be the same result as occurs with invalid IMR; return to UR and do it correctly.  We can also look to the authority of the W.C.A.B. to decide medical issues if it determines IMR was not valid (the W.C.A.B. cannot) and compare it to the W.C.A.B.’s usurpation of medical decision making in invalid (untimely) UR.  Why should the invalidity of a UR decision extend such authority when invalidity of IMR does not?

Certainly the W.C.A.B.’s assumption of the ability to render a decision on medical treatment does not meet the public policy of a “process that balances the interests of speed and accuracy, emphasizing the quick resolution of treatment requests …” (quoting Sandhagen).  Getting to hearing at the W.C.A.B., further development of the record and continued litigation over interpretation of the MTUS by non-medical professionals are almost a guarantee that the exact opposite of “speed and accuracy” is going to occur.  Certainly this case, with the original RFA in October, 2013 and no decision  yet as to surgery, is not exactly a poster child for “speed and accuracy” in the process.

The W.C.A.B. in this case also approved the WCJ’s order for further development of the record based on a lack of substantial evidence.  “Substantial evidence” for what?  If the medical evidence does not support the need for surgery, is that not substantial evidence that the applicant is not entitled to the surgery at that time?  If the evidence at an Expedited Hearing did not support the requested treatment why not rule the applicant simply did not meet the burden to prove entitlement to the medical treatment at this time?  Why should the WCJ not reject the demand and determine UR was invalid, and then the applicant can submit a new request (the 1 year limitation on requesting would not apply since the UR determination was ruled invalid) to see if surgery is approved with a more complete (hopefully) request?  It appears the real purpose behind development of the record is to give the applicant a vehicle to develop a record to allow the WCJ to approve the requested surgery.  If so, what are the rights of the defendant to review and evaluate such subsequent record development to determine if the request meets the MTUS?

Inquiring minds want to know…

* Significant panel decisions are not binding precedent in workers’ compensation proceedings; however, they are intended to augment the body of binding appellate court and en banc decisions and, therefore, a panel decision is not deemed “significant” unless, among other things: (1) it involves an issue of general interest to the workers’ compensation community, especially a new or recurring issue about which there is little or no published case law; and (2) all Appeals Board members have reviewed the decision and agree that it is significant.

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