DeRosa v Fremont Compensation (BPD) (48 CWCR 38):
On October 14, 2013, a secondary treating physician, requested authorization for spinal surgery for the applicant. Defendant issued a utilization review denial on October 23.
The matter proceeded to expedited hearing. After next-decided hearing the applicant contended that the UR denial was untimely. The WCJ ruled that the treatment request did not comply with AD rule 9785 and defendant’s UR denial was timely and timely communicated. Therefore, the WCJ did not order defendant to authorize the requested treatment.
Applicant filed a petition for reconsideration.
The WCJ recommended that reconsideration be denied as the WCJ concluded UR denial was timely. The WCJ observed that the UR denial had issued on October 23, after defendant’s receipt of the RFA on October 17, is within the timeframe and dated by LC § 4610, five working days from receipt of the treatment requests. The WCJ found the RFA inadequate. Further, the WCJ wrote that the UR reviewer had made two unsuccessful attempts to reach the physician by telephone. These never got through during the period the written UR denial had been addressed applicants attorney with copies sent to the secondary treating physician, defense counsel and applicant.
The WCAB concluded that a secondary treating physician’s surgical treatment request can be valid. The panel reasoned that either a primary or secondary physician may make a request for authorization of treatment. It noted that LC § 4610.5 authorizes either the treating physician or the physician designated by the treating physician to render opinions on all medical issues necessary to determine eligibility for compensation. From the applicable statutes and regulations, the panel concludes either a primary or secondary physician is authorized to make an RFA.
Concerning the timeliness of the communication of UR decision to the requesting physician, the panel cited both Dubon and Bodham. It stated there are three crucial requirements for UR decision to be timely. (1) a UR decision must have complied with all time requirements, including time limitations within the UR decision must be communicated; (2) a timely made UR decision is rendered on timely but not been timely communicated; (3) when a UR decision is untimely and thus invalid, the WCAB may determine, based on substantial evidence, the necessity of medical treatment at issue.
A UR decision is due within five working days from receipt of all information necessary for a determination of medical necessity, but not later than 14 days from the date the physician sought treatment. However the panel continued, Labor Code § 4610 (g) (3), imposes additional requirements;(1) that the UR decision must be communicated to the treating physician within 24 hours by telephone, fax, or email, and (2) written notice of the decision must be sent to the treating physician, the injured employee, and, if represented, the injured employee’s attorney, within two business days after it is issued.
The panel emphasized that even when a UR decision has been made within a shorter time frame, the Labor Code requires that the communication time period of UR decision start from the date on which the UR decision is actually made.
In this instance, the defendant has the affirmative burden of proving that the communication was timely and that both the 24-hour and two business-day requirements were met. The panel observed that, according to the UR denial, the UR physician placed calls to the treating physician on October 21, 2013 and October 23, 2013. The receptionist transferred the call to the voicemail of one “Jessica” and that the callback information was provided along with the reason for the call. Nevertheless, the panel reasons, defendant was not shown when the denial was communicated or whether it was timely communicated. Further, the denial were viewed as having been communicated on October 21, written notice should have been sent by October 22.
The WCAB remanded the matter to the trial level to determine whether the UR was timely.