California: When Is an Expedited Review of a Treatment Request Required?

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

Utilization Review (UR) to determine the appropriateness and necessity of requested medical treatment in a timely manner based on accepted medical standards and guidelines has been a mandatory component of California’s workers’ compensation system for over two decades. In that time, we have become used to the process and the distinct roles of the treating physician, the UR reviewer, the workers’ compensation judge (WCJ), independent medical review (IMR) and the Workers’ Compensation Appeals Board (WCAB). One aspect of the UR process, however, continues to confound treating physicians and practitioners alike: the elements of a proper request for an expedited review of a treatment request. A recent WCAB panel decision clarifies the requisite components of a request for authorization (RFA) of treatment by an expedited review. The case is Castellanos v. Best Buy, Inc. (May 10, 2024, ADJ18538112) 2024 Cal. Wrk. Comp. P.D. LEXIS 122.

The Facts

Precious Castellanos (applicant), while employed by defendant on November 26, 2023, claims to have sustained injury arising out of and occurring in the course of her employment to her head, neck, brain, and right arm. Applicant was seen in the emergency room on November 26, 2023, and was discharged the same day with the recommendation that she follow up with her primary care physician. Applicant was next seen by Dr. Yury Furman, who reported on November 30, 2023, with the recommendation that applicant be treated with acupuncture, strengthening, endurance and aerobic exercise, and medication for pain. Dr. Furman placed applicant on temporary total disability.

Dr. David Patterson then became applicant’s treating physician. On January 5, 2024, Dr. Patterson submitted a request for authorization (RFA) in which he requested certain different treatment modalities, including 12 visits to an outpatient transitional living center day treatment program where applicant would receive up to six hours of physical, occupational, speech therapy and neuropsychology, along with transportation to and from the program. On the RFA Dr. Patterson selected the box for an expedited review.

Five days later, on January 10, 2024, defendant issued its UR decision, denying authorization of the outpatient transitional living center day treatment program.

Applicant then requested an expedited hearing, contending that defendant’s UR denial was untimely because it was not completed within the 72-hour period provided for an expedited review and, therefore, the WCAB had jurisdiction to determine her entitlement to the outpatient transitional living center day treatment program as reasonable and necessary medical treatment.

An expedited hearing was held on February 14, 2024, and a few days after the hearing, the WCJ issued a Findings and Order (F&O) in which it was found that the January 10, 2024, UR decision was timely and the WCAB lacked jurisdiction to determine the dispute. In the opinion that accompanied the F&O, the WCJ explained that although Dr. Patterson requested an expedited review by checking the expedited review box on the top of the RFA form, he failed to substantiate 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.

Applicant sought reconsideration of the F&O, arguing that the WCJ improperly shifted the burden of proof on her to demonstrate the reasonableness and necessity of the treatment requested by her treating physician.

The Panel’s Analysis

The panel begins its analysis with the observation that applicant’s petition for reconsideration cites as authority a panel decision in Rodriguez v. Air Eagle, Inc., 2015 Cal. Wrk. Comp. P.D. LEXIS 3 (Appeals Board noteworthy panel decision), and includes a statement represented to be a direct quote from the Rodriguez decision, as follows: “[t[he purpose of the check box is to alert the reviewer that a separate timeframe for the decision applies, and there is nothing in Rule 9792.9.1. …which allows a defendant to override a requesting physician’s designation of a request as imminent and serious. Thus, the… RFA should have been treated as an expedited request.”

The panel points out that the quoted text from Rodriguez, supra, however, is incomplete and the full quotation actually reads: “[t[he purpose of the check box is to alert the reviewer that a separate timeframe for the decision applies, and there is nothing in Rule 9792.9.1 as it existed in 2013 which allows a defendant to override a requesting physician’s designation of a request as imminent and serious.”

This omission of the phrase, “as it existed in 2013,” is not just a matter of semantics—it is significant because Rule 9792.9.1 was amended and the amended version is applicable to dates of injury on or after January 1, 2013, which includes applicant’s case. The amended version of the rule now states:

Prospective or concurrent decisions to approve, modify, delay, or deny a request for authorization related to an expedited review shall be made in a timely fashion appropriate to the injured worker's condition, not to exceed 72 hours after the receipt of the written information reasonably necessary to make the determination. The requesting physician must certify in writing and document the need for an expedited review upon submission of the request. A request for expedited review that is not reasonably supported by evidence establishing that the injured worker faces an imminent and serious threat to his or her health, or that the timeframe for utilization review under subdivision (c)(3) would be detrimental to the injured worker's condition, shall be reviewed by the claims administrator under the timeframe set forth in subdivision (c)(3).

The panel then summarizes the requirements for requesting an expedited review under the applicable version of Rule 9792.9.1. First, the requesting physician must certify and document in writing the reason(s) why an expedited review is necessary. Second, the documentation must establish that the injured worker faces an imminent and serious threat to their health or, third, that the normal five-day timeframe for UR would be detrimental to the injured worker’s health. In absence of such written certification and documentation, Rule 9792.9.1 states that the RFA shall be reviewed under the five-day timeframe set forth in subdivision (c)(3) of the rule.

In its application of the underlying facts to Dr. Patterson’s RFA, the panel quotes from the WCJ’s Report and Recommendation on Petition for Reconsideration (R&R). The R&R states that even on a liberal reading of the RFA, Dr. Patterson did not provide any documentation that applicant faces an imminent or serious threat to her health and safety such that a review under the regular five-day timeframe would be detrimental to her health. To the contrary, Dr. Patterson simply states his belief that applicant would benefit from the outpatient program. The WCJ then references Diaz v. Pacific Coast Framers, Inc., 2023 Cal. Wrk. Comp. P.D. LEXIS 211 (Appeals Board noteworthy panel decision), in which a panel held that the physician’s RFA was properly reviewed under the five-day period in subdivision (c)(1) of Rule 97929.1 where the RFA and doctor’s reports failed to establish that applicant’s condition posed a serious and imminent threat to his health that would warrant an expedited review. The WCJ states he found Diaz, supra, persuasive and applicable.

The panel states its agreement with the WCJ’s analysis of Rule 9792.9.1(c)(4) that a RFA requesting expedited review must reasonably establish that the injured worker faces an imminent and serious threat to their health, or that the timeframe for a routine, non-expeditious review would be detrimental to the injured worker’s health. Absent such written certification and documentation, the RFA will be reviewed within the timeframe contained in subdivision (c)(3), which is five business days from receipt of the RFA or not to exceed 14 days.

The panel then concludes that Dr. Patterson’s January 5, 2024, RFA failed to meet the criterion for expedited review under Rule 9792.9.1(c)(4) because it did not explain why or how applicant faced an imminent and serious threat to her health or how a routine UR review of the RFA would be detrimental to her health. Dr. Patterson simply stated his belief that applicant would benefit from the recommended treatment. Having failed to meet the criterion for an expedited review, the January 5, 2024, RFA was properly reviewed under the standard for non-expeditious review set forth in Rule 9792.9.1(c)(3). Here, defendant conducted the review within five business days, making it timely, and, accordingly, the WCAB has no jurisdiction over the issue.

Takeaways

The main point of Castellanos is crystal clear: Rule 9792.9.1(c)(4) specifies the required components of a proper request for an expedited review of a medical treatment request, and the requesting physician must provide sufficient information within the body of the request to establish an imminent and serious health to the injured worker’s health and safety or otherwise explain how a non-expeditious review would be detrimental to the injured worker’s health. Unless that documentation is included in the request, the RFA will be reviewed under the timeframe for non-expeditious requests.

There is a secondary point that is equally important. When quoting a reference, be it from case, statute, or rule, etc., be sure that the quote is accurate and does not omit any pertinent language.

Reminder: Board panel decisions are not binding precedent.

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