California: WCAB Panel Finds Request for Authorization Submitted by Secondary Treating Physician Triggered Utilization Review Process

Statutory scheme regarding the role of the primary treating physician is less than perfectly clear

In Lopez v. City and County of San Francisco, 2016 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB panel affirmed the WCJ’s award of medical treatment recommended by the secondary treating physician Clement Jones, M.D., including disc replacement surgery, to the applicant police officer with a 3/13/2012 admitted industrial back injury, based on the defendant’s failure to timely perform utilization review (UR) of the requested treatment.

The WCAB panel rejected the defendant’s assertion that it was not obligated to perform UR of the treatment requested by Dr. Jones because secondary treating physicians have no right to submit requests for authorization (RFA). The WCAB panel reasoned that there is no express requirement in the Labor Code or the Administrative Director Rules that an RFA may only be submitted by a primary treating physician (PTP). Moreover, there is little support in case law for the defendant’s position that an RFA submitted by a secondary treating physician is not subject to UR. The fact that a PTP has specific duties vis-à-vis communicating with the claims adjuster about an employee’s medical condition and treatment does not diminish the role of the secondary treating physician who has been invited to apply his or her specialized expertise to assist in the employee’s treatment, where the treating physician may lack such expertise.

Here, Dr. Jones was requested to examine the applicant to determine whether he was a candidate for surgery and, as the examining physician, he qualified as a secondary treating physician. Dr. Jones’ intention was to act as a treating physician when he consulted for the applicant’s PTP, who was a pain management specialist, and recommended that he perform surgery that was beyond the PTP’s expertise. Because the defendant did not meet the mandatory UR requirements for responding to Dr. Jones’ RFA, the WCJ properly exercised jurisdiction to determine the medical necessity of treatment recommended by Dr. Jones.

Commentary:

The panel in Lopez got one thing right: The Administrative Director Rules requiring that the RFA be submitted on an RFA form does not require that the RFA necessarily be submitted by the PTP. However, the panel otherwise failed to specifically address the balance of the arguments raised by defendant on reconsideration. Specifically, defendant argued that the rules, most particularly, AD Rule 9785, laid out the specific responsibilities of the primary treating physician. These rules require that the primary treating physician to report regularly to the claims administrator and to report specifically any changes in the applicant’s treatment plan, including the need for any surgeries.

The fundamental problem here may be that the “real world” and the world assumed by the overarching statutory scheme may be inconsistent with one another. In the “real world” PTP’s make referrals out to specialists to determine if treatment outside their specialty is needed. To require that the specialist make a recommendation and then to require that that recommendation be adopted by the PTP would only serve to prolong the treatment process. Hence, it is difficult to argue with the panel’s conclusion that the request of the secondary physician does, in fact, trigger the UR process.

In conclusion, though the statutory scheme regarding the role of the PTP is less than perfectly clear, if the objective is to make sure the injured worker receives the timely medical treatment that is compliant with the applicable medical treatment schedule, it appears the panel in Lopez reached the correct conclusion.

Read the Lopez noteworthy panel decision.

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