WCJ Awards Medical Treatment, Penalties, and Attorney Fees Despite Utilization Review Delay of Treatment

Cordova v. Garaventa (BPD) (43 CWCR 12)(ADJ 553885):


The WCJ found applicant one hundred percent permanently, totally disabled and entitled to future medical care pursuant to a December 31, 2010 Findings and Award. The WCJ found that the defendant issued a utilization review, non-certification notice on July 19, 2013 and that denials were neither communicated timely to the applicant’s primary treating physician nor accompanied by the required Independent Medical Review form, thereby rendering them inadmissible. The WCJ awarded the contested medical treatment, penalties and attorney fees.


Defendants filed a petition for reconsideration, arguing that the Appeals Board lacks jurisdiction to decide a dispute over a utilization review decision which was communicated to the primary treating physician on or after July 1, 2013 and in refusing to apply Labor Code section 4610 (g) (6) to a request for treatment which issued within 12 months of the utilization review decision denying the same treatment. Defendant also contends the WCJ’s without power to award an attorney fee for enforcement of a medical award.


The WCJ found the applicant was entitled to Nucynta and Neurontin on an industrial basis and the applicant was entitled to a penalty under Labor Code § 5814 and applicant’s attorney is entitled to a fee pursuant to Labor Code § 5814.5.


On November 5, 2012, defendant issued a UR decision denying authorization for a prescription of Nucynta and Neurontin. On July 19, 2013, defendant issued and “appeal review” of the November 5, 2012 utilization review decision affirming the November 5, 2012 utilization review decision. On June 28, 2013, defendant issued a utilization review decision authorizing several medications including the Neurontin.


Labor Code § 4610.5 provides for Independent Medical Review of utilization review decisions and applies to any dispute over a utilization review decision if the decision is communicated to the requesting physician on or after July 1, 2013, regardless of the date of injury.


The November 5, 2012 utilization review decision predates July 1, 2013 and accordingly is not subject to independent medical review. The June 28, 2013 utilization review decision authorized the disputed treatment of Neurontin. July 18, 2013 utilization review decision authorized the disputed Flector patches. The July 29, 2013 “appeal review” decision was a review of an earlier UR decision and, as such, is not a utilization review decision subject to independent medical review. Because none of the disputed denials of treatment were communicated to requesting physician on or after July 1, 2013, none of the disputed UR decisions are subject to independent medical review.


Labor Code § 4610 (g)(6) provides that a utilization decision to modify, delay, deny any treatment recommendation shall remain effective for 12 months from the date of the decision, This does not require  any further action by the employer regarding further recommendation for the same treatment, unless the further recommendation is supported by a documented change in the basis of the UR decision.


Labor Code § 4610 (g) (6) does not apply to authorize treatment.


With respect to the prescription for Nucynta there is insufficient evidence for the board to determine whether the UR decision or decisions were timely made and whether defendant relied on section 4610 (g) (6). dditional request for that prescription to utilization review. Accordingly the WCAB deferred that issue with jurisdiction reserved at the trial level.


The WCAB found that defendant’s delay of treatment that was authorized by a utilization review physician was unreasonable. However, with respect to the denied prescription of Nucynta defendant could reasonably rely on the regionalization review denial.  Therefore the board amended the Findings and Award toward a penalty and attorney fees on the delayed provision of Neurontin only.


The board also ruled the attorney is entitled to an attorney fee pursuant to LC § 5814.5. The board pointed out that in accordance with the en banc decision in Ramirez (73 CCC 1324) the WCJ may only allow fees based on a reasonable number of hours expended by applicant’s attorney for legal services rendered in enforcing the unreasonably delayed prior award, and not based on hours expended for any other purpose. The issue of reasonableness, the WCJ should take note of the Appeals Board statement in Ramirez that in determining attorney fees under Labor Code § 5814.5 the Appeals Board approves the method of calculating attorney fees for obtaining vocational rehabilitation set forth in Rocha (47 CCC 377). In Rocha the board stated the best method of calculating the worth of the services is based on the time and effort expended by the attorney as reflected in the hours of work devoted to securing rehabilitation services for the client. The fee, however, may not be entirely disproportionate to the amount of benefit obtained. If for instance, counsel spends long hours to obtain benefits of small value, the fee should not be strictly based on the number of hours without regard to the benefits obtained. Where there are sufficient benefits involved, however, the fee based on time and effort is appropriate. The board found in this case the award of a 5814.5 attorney fee was reasonable and well supported.


Finally, the WCAB admonished defendant that the applicant has an award of medical treatment and the utilization review cycle of denials and authorizations for applicant’s prescription medication appears to be arbitrary. While defendant is entitled to submit every prescription request to utilization review, we suggested defendant should consider whether doing so is cost-effective and fulfills its obligation to provide applicant with medical treatment to cure or relieve from the effects of his industrial injury.


The board deferred the other issues and remanded the matter to the WCJ.

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