Shanley v. Henry Mayo Newhall Memorial Hospital (BPD) (ADJ 795505):
The WCJ found the UR review decision issued by defendant on August 6, 2013 did not violate Labor Code § 4610 or A.D. rule 9792.9. Defendant’s UR decision denied a request for authorization of a lumbar MRI EMG of the lower extremities.
Applicant filed a petition for reconsideration contending that: (1) UR physician was not qualified to conduct UR because he is not an orthopedist or an orthopedic surgeon as required; (2) the physician was not qualified to conduct a UR decision because he is not licensed in California; (3) UR decision was not communicated by phone/fax within 24 hours (common violation of section 4610 (g) (3) (A) and A.D. rule 9792.9 (b) (4)); (4) UR decision was not signed by the physician.
The WCAB quickly resolved the first, second and fourth contentions. According to Dubon II, the WCAB held that a UR decision may be invalid only if it is not timely and all other disputes must be resolved by independent medical review. The WCAB ruled that they lacked authority to address applicant’s first, second and fourth contentions.
The WCAB then turned to applicant’s third contention.
The board stated that in the case of Bodam v. San Bernardino County (79 CCC ____, 214 Cal. Wrk. Comp. LEXIZS 156), the appeals board held that under the provisions of section 4610 (g) (1) and (g) (3) (A) and A.D. rule 97 92.9.1 (e) (3): (1) a defendant is obligated to comply with all time requirements in conducting UR, including the time frames for communicating the UR decision; (2) a UR decision that is timely made but is not timely communicated is untimely; and (3) when a UR decision is untimely and, therefore, invalid, the necessity of medical treatment at issue may be determined by the WCAB based on substantial evidence.
Pursuant to rule 4610 (g) (1), a prospective UR decision must be made within “five working days from receipt of the information reasonably necessary to make the determination, but in no event more than 14 days from the date of the medical treatment recommendation by the physician.”
However, under section 4610 (g) (3) (A) and as clarified by A.D. rule 9792.9 .1 (e) (3), there are the additional requirements that (1) within 24 hours after the UR decision has been made, the decision must be communicated to the treating physician either by telephone, fax, or email; and (2) within two business days after the decision has been made, written notice of the decision must be sent to the treating physician, the injured employee and the injured employee’s attorney (if represented).
These times start running from the date the UR decision is actually made, even if the UR decision is made in a shorter time frame that can be permitted by section 4610 (g) (1).
Moreover, both the 24-hour and two business-day requirement must be met; it is not sufficient to meet only one of them.
The defendant has the affirmative burden of proving that its UR process was timely.
In this case the evidence established that on July 30, 2013, defendant received a July 29, 2013 request for authorization from the treating physician, with copies of his narrative reports and PR-2.
The determination date of the UR was August 6, 2013.
The board concluded that defendant made its UR decision on August 6, 2013, which was within five business days of its July 30, 2013 receipt of the RFA because the third and fourth calendar days were a Saturday and a Sunday, August 3 and fourth 2013.
Accordingly the board found the UR decisions themselves were timely determined.
The question then becomes whether UR decisions were timely communicated.
The evidence established that on the same date August 6, 2013 UR decision was mailed to applicant, her attorney and the treating physician. Therefore, defendant met the two business day requirement of the Labor Code and regulations.
The remaining issue was whether the decision was communicated by phone, fax or email to the physician within 24 hours after the decision was made.
The board concluded the evidence did not sufficiently establish and defendant did not meet their burden of proof that it timely communicated the decision by phone, fax or email within 24 hours after the decision was made.
Most significantly UR decision merely states that a phone message was left without specifying the nature content of the phone messages. Therefore, defendants had not shown that the message informed the treating physician of the UR denial.
In addition, the statement that peer-to-peer contact was unsuccessful further failed to prove that the result of the UR decision was communicated by phone within 24 hours.
The board then concluded that in accordance with Dubon II and Bodam defendants UR decision was invalid because of failure to timely communicate those decisions by phone, fax or email within 24 hours to the treating physician and therefore the medical necessity issue must be determined by the WCAB and not an independent medical reviewer.
The matter was remanded to the WCJ to determine whether the lumbar MRI and EMG of the lower extremities were medically necessary.