Stanley v Travelers (BPD) (48 CWCR 40):
This case and the last case both deal with the issue of phone messages left with the treating physician were not adequate. When you read this case and the case before this it is best to advise clients to send all denials and modifications by email or fax as phone messages can be a real problem set forth in these two cases.
Applicant’s treating physician issued a narrative PR-2 report on July 26, 2013. The request for authorization (RFA) for treatment dated July 29, 2013 was for a lumbar MRI and an EMG.
The defendant received the RFA along with the relevant treatment reports on July 30 and five business days later, on August 6, issued a denial with copies to the applicant, her attorney, and the treating physician. The denial included a notation stating there was a “peer-to-peer” contact date of August 6 that was unsuccessful and thus the phone message was left with a contact person.
The applicant challenged the UR decision and requested an expedited hearing.
The WCJ found the UR decision was proper.
The applicant filed a petition for reconsideration.
The WCAB held that only a timeliness dispute gives the WCAB jurisdiction to review a UR decision prior to independent medical review.
The WCAB citing Bodam explained a UR decision must comply with both decision and communication timelines, and the order to comply with either of those timeline renders the entire decision untimely.
The board may decide the necessity for medical treatment using the substantial’s and put in standard only if the decision is untimely.
The WCAB observed that pursuant to Labor Code § , a prospective UR decision must be made within five working days (and in no event more than 14 days) of receiving an RFA (and the information reasonably required to make a determination).
Furthermore, a UR decision must not only be timely made but must be timely communicated to the treating physician within 24 hours by telephone, fax or email. The decision must that also be communicated in writing to the treating physician, the applicant, the applicant’s attorney, within two business days.
The board concluded that the UR decision in the present case had been timely made and had been timely communicated in writing to all necessary parties. The sole issue became whether defendant had complied with the 24 hour treating physician notice requirement.
The defendant, the panel asserted (without citing a specific case), had the affirmative burden of proving that the UR process was timely and that the UR decision had been timely communicated. The panel concluded that the notation indicating a failed (peer-to-peer) contact did not satisfy the defendant’s burden of proof; a notation indicating that the message had been left, without specifying the nature content of the message, was insufficient to meet the burden.
Accordingly, in its decision after reconsideration the WCAB held the UR had been untimely and remanded the case to determine if there is substantial evidence on the issue of medical treatment.