Medical Treatment (2/3)

  1. Navorth II v. Mervyn’s Stores (BPD) (LEXIS):


The WCJ found that an independent medical review of a utilization review dispute must be conducted by a doctor with an unrestricted license to practice medicine in the state of California and because the IMR reviewer was not licensed in California, the Administrative Director acted in excess of her powers. The matter was remanded to the AD to conduct another IMR review.


The WCAB concluded that confusion arises because there are two separate and distinct medical review processes, which are labeled “independent medical review”. One process triggered by the employer’s objection to medical treatment determination; the other process triggered by the employee’s objection the medical treatment determination.


This case involves the more common form of independent medical review, which is the review of an adverse UR decision where the employer objects to a recommendation by the treating physician that applicant received treatment. The Board labeled this the UR/IMR process. This process applies to all treating physicians regardless of whether the employee utilizes an MPN physician. This procedure is governed by Labor Code §§4610, 4610.5 and 4610.6. The IMR reviewer may not order any additional diagnostic tests needed to determine the necessity of the medical treatment. The IMR review is a records review only. The reviewer does not examine the injured worker and the identity of the reviewer is anonymous. The reviewer can request additional records. The scope of WCAB review by the WCAB is limited.


A lesser used independent medical review was existed since 2004, which occurs when the employee disputes the treatment recommendation of the medical provider network doctor.


This procedure is governed by Labor Code §§ 4616.3 and 4616.4. This section provides that the injured worker can obtain a second and third opinion from another MPN physician and review shall be conducted by a physician examination of the injured worker upon request. The IMR reviewer may order additional diagnostic tests in order to make a correct determination. The WCAB may review all aspects of the IMR decision for error.


It is important to delineate whether the injured worker for the employer is objecting to the treating physician’s recommendation in order to correctly apply the law as it pertains to the parties.


In addition to the procedural differences, the requirement for the licensure of the reviewing physician differs between the two processes.


An MPN/ IMR reviewer must be a physician licensed in the State of California, whereas a UR/IMR reviewer can be licensed in any state. An MPN/IMR reviewer is required by statute to be licensed in the state of California. (Labor Code §4616.4(a)(2). This specific language is clear that an MPN/IMR reviewer must be a physician licensed in the state of California.


The language describing the licensing requirement for a UR/IMR reviewer differs from the MPN/IMR statute. The UR/IMR statutes states: “medical professionals selected by independent medical review organizations to review medical decisions shall be licensed physicians, as defined by Section 3209.3, in good standing. (Labor Code 139.5 (d) (4).  Section 3209.3(a) defines a physician as follows: “physician, includes physicians and surgeons holding an M.D. or D.O. degree, psychologists, acupuncturists, optometrists, dentists, podiatrists, and chiropractic practitioners licensed by California state law within the scope of their practice as defined by California state law.


The Board stated at first glance it would appear that it UR/IMR reviewer must be licensed pursuant to California law. However, the Court of Appeal has interpreted the word (includes) in section 3209.3 to be expansive and meaning. (State Fund v. WCAB (Arroyo) (42 CCC 394.


The court in this case held that the word (includes) is ambiguous and could mean either “includes only” or “includes but limited to”. After reviewing the legislative intent, the court interpreted “includes” to mean “includes, but not limited to”.


Thus, with respect to the definition of physician pursuant to section 139.5(d)(4) and that such physicians include but are not limited to physicians licensed in the state of California. In coming to this conclusion they noted that section 139.5 does state “the independent medical review organization shall give preference to the use of physicians licensed in California as the reviewer.” 139.5 (d) (4) (B).


The Board stated that no party has argued that the UR/IMR organization failed this duty and no evidence exists in the record from which the WCAB could make such determination.


The WCAB concluded that under the UR/IMR statute, the reviewer need not be licensed in the State of California; thus it was error to rescind the UR/IMR determination solely on the ground.


The WCAB went on to conclude, despite the fact that the WCJ sole basis for decision was the license issue, that the IMR decision was untimely and the WCAB had jurisdiction to determine the medical dispute. The Board indicated that all the the issue of timeliness of the IMR review is not raised in defendant’s petition for reconsideration, the filing of a petition for reconsideration gives the WCAB authority to address all issues including those not specifically raise. (Passquotto v. Hayward Lumbar (WCAB en banc) (71 CCC 223).


In this case defendant raised the issue of whether the IMR review was valid.  Defendant’s argument necessarily requires an analysis of the entire IMR decision and not just limited to the issue of the reviewer’s license status. Also, the issue of timeliness of the IMR review is one of jurisdiction, which is an appropriate issue to be raised sue sponte.


The Board went on to indicate that Maximus issued the IMR determination beyond the 30 days allowed by section 4610.6 (d).  The Board then found the 30-day requirement mandatory and found the WCAB had jurisdiction to issue a decision regarding medical treatment.


A concurring and dissenting opinion agreed with the majority that the UR/IMR reviewer need not be licensed in the State of California. However, this Commissioner would have remanded the matter to the WCJ to evaluate applicant’s argument that the MTUS applied for in the RMR reviewer had expired and if true, to determine whether the IMR decision was based on substantial medical evidence.



  1. Czeh v. Bank of America (BPD) (LEXIS):


The WCJ issued a Findings of Fact and Award that found defendant failed to timely complete utilization review and that the applicant was entitled to medical treatment.


Defendant filed a petition for reconsideration contending that the request for authorization of medical treatment was not properly served upon the adjuster and that defendant’s duties under Labor Code 4610 are triggered only upon the adjuster’s receipt of the RFA and not defendant’s attorney’s receipt of the RFA


The applicant’s attorney faxed a copy of both the medical report and the request for authorization, dated October 21, 2015, to defendant’s attorney. Despite being served with the medical report and request for authorization through its attorney of record, the defendant took no action to review the requested medical treatment.


The WCJ then issued the decision that defendant did receive the request for authorization through its attorney of record and failed to submit the requested treatment through utilization review. The WCJ determine the medical treatment was reasonable.


The defendants argue that pursuant to 9792.9.1(a), the RFA can only be received by the claims administrator or its utilization review organization with the jurisdiction that service on its attorney would add an additional, completely unintended step to utilization review process, and would result in defendant’s attorneys being chained to their fax machines to ensure that the request for medical treatment get processed on time resulting in undo an unreasonable burden to place upon defense attorneys.


The WCJ indicated that defendant ignored the fact that the WCAB has recognize that attorneys act as agents, and by their actions or inactions, subject their clients, or principles, to liability resulting therefrom. The acts of an agent, if within the actual or extensible authority the agent, bind the principal of the agent. The negligent acts or omissions of an attorney are imputed to the client under the new agency. (San Bernadino Community Hospital (McKernan 64 CCC 986)


The WCJ indicated it was demonstrably imprudent for the defendant’s attorney to stand idly by after receiving an RFA for treatment and imprudently claim later at an expedited hearing that he had no duty to notify his client that he received the RFA which would’ve been allowed. Defendants are to expeditiously and timely perform utilization review. (Romano 213 Cal. Wrk. Comp. P. D. LEXIS 125)


The WCAB, citing Labor Code 4610, creates an affirmative duty to review request for authorization of medical treatment. The section provides that for prospective or concurrent decisions shall be made in a timely fashion not to exceed 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.


Labor Code 4610 does not specify whose receipt of the RFA triggers the time frame to complete utilization review.


Rule 9792.9.1(a)(1) resolves the ambiguity in the statute. That section provides that the DWC form RFA shall be deemed to have been received by the claims administrator or its utilization review organization.


The WCAB went on and indicated in reviewing the above statute, we know that utilization review is only triggered by either the claims adjuster or utilization review organizations receipt of the RFA.


However, defendant has continuing affirmative duty to conduct a good faith investigation of the claim and to provide benefits when due. (Regulation 10109)


The Supreme Court in Braewood Convalescent Hospital (34 Cal 3d 159) states that section 4600 requires more than a passive willingness on the part of the employer to respond to demand a request for medical aid. This section requires some degree of active effort to bring to the injured employee the necessary relief. Upon notice of the injury, the employer must specifically instruct the employee what to do and whom to see, and if the employer fails or refuses to do so, then he loses the right to control the employee’s medical care and becomes liable for the reasonable value of self-procured medical treatment.


Although the strict utilization review timeframe begins upon the adjuster or UR organizations’ receipt of an RFA, where a dispute exists over whether the RFA was transmitted to the adjuster and defendant’s attorney files an objection to the provision of medical treatment alleging the claims administrator never received a copy the RFA, and the same attorney then receives a copy of the disputed RFA, that attorney has a duty to transmit a copy of the RFA to the claims administrator within a reasonable time so the dispute can be resolved expeditiously as possible.


Here, defendant’s attorney specifically objected to applicant’s request for an expedited hearing on the basis that the claims administrator had not received a copy of the RFA in dispute. Defendant had knowledge that a treatment request was made, but defendant claimed that it did not receive that request.


Defendant should have taken taken active steps to obtain the missing RFA and reviewing the request for treatment. Once defendant’s attorney received the RFA from the applicant and because defendant’s attorney had specific knowledge that his client required a copy of RFA, defense attorney should have transmitted the RFA to the adjuster within a reasonable time period.


A member shall keep a client reasonably informed about significant developments relating to the employment or representation including promptly complying with reasonable requests for information and copies of significant documents when necessary to keep the client so one form.


We find in the limited facts of this case that defendant’s failure to provide the RFA to the claims administrator was unreasonable and the WCJ’s award of treatment was proper.


The petition for reconsideration was denied.



  1. Thompson v. County of Los Angeles (BPD) (2016 Cal. Wrk. Comp. P.D. LEXIS 107):


The applicant filed for a hearing on the issue of medical necessity of back surgery because the utilization review was untimely. The applicant’s attorney argued the utilization review is untimely because it was served on applicant’s former attorney but not the current attorney. The facts show the defendants had received a substitution of attorney notification two years prior to the utilization review decision. The WCAB concluded the utilization review is untimely and therefore the WCJ had jurisdiction over the medical issue.


The WCAB found that the medical report was not substantial evidence on the issue of necessity the low back surgery. The WCAB rescinded the WCJ’s decision and remanded the matter for further evidence. The WCAB found the treating physician failed to justify his recommendation by reference to the MTUS,


The WCAB also found the physician did not address the issue of reasonableness and necessity by reference to other elements of the hierarchy for evidence-based standards and medical opinions pursuant to Labor Code § 4610.5 (c) (2).

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