Medical Treatment/Utilization Review

Sutter Solano Medical Center v. WCAB (Go) (W/D) (83 CCC 381):

 

Applicant suffered an admitted industrial injury to her neck.

 

One of applicant’s treating physicians submitted an RFA for cervical spine surgery on May 7, 2015.  Utilization review denied the spine surgery and it was upheld by IMR.

 

Applicant was declared permanent stationary on September 11, 2015 by the treating physician with a 7% permanent disability after apportionment to nonindustrial factors.

 

On March 28, 2016, after experiencing an increase in symptoms, applicant self-procured cervical spine surgery.

 

Following the surgery applicant was evaluated by a panel Qualified Medical Evaluator who found the applicant permanent and stationary with a 23% permanent disability after apportionment to nonindustrial factors.

 

Defendant disputed the Qualified Medical Evaluator’s determination and asserted that, because authorization for the cervical spine surgery was denied through UR/IMR defendant had no liability for additional permanent disability or temporary disability caused by the surgery.

 

The matter proceeded to trial and the WCJ issued a decision finding applicant sustained a period of compensable temporary disability as a result of the surgery she self-procured after the UR/IMR denied the procedure. The WCJ found the applicant had 23% permanent disability after apportionment to nonindustrial factors based on the report of the Qualified Medical Evaluator.

 

Defendant filed a petition for reconsideration.

 

The WCJ recommended that reconsideration be denied. The WCJ explained that she determined the applicant was entitled to the temporary disability and permanent disability following the surgery because the surgery proved to be reasonable by its positive outcome. She also found the report of the Qualified Medical Evaluator was substantial evidence and more persuasive than the treating physician’s report.

 

The WCJ citing the case of Barela v. Leprino Foods (2009 Cal. Wrk. Comp. P.D. LEXIS 482), in which the Appeals Board recognize that there is no prohibition against an injured worker self-procuring medical treatment for industrial injury, and that, while the employer may be relieved of liability for the cost of the self-procured treatment, the injured worker’s entitlement to permanent disability is not limited solely because the treatment was self-procured.

 

The defendant cited the case of Riberio v. WCAB (80 CCC 1222, writ denied), in which the Appeals Board held the applicant was not entitled to temporary disability caused by an unauthorized surgery performed to treat an industrial condition.

 

The Appeals Board adopting and incorporating the WCJ’s report, denied reconsideration based on its conclusion that it injured worker is entitled to indemnity for temporary disability and permanent disability resulting from the reasonable medical treatment of an industrial injury, even if the treatment is self-procured.

 

The WCAB observed that the panel in Riberio opined that the self-procured treatment was unnecessary and, by extension, the permanent disability caused by the un-authorized surgery was nonindustrial and apportionment was supported. In the Barela case the Agreed Medical Evaluator initially determined that the surgical procedure was unnecessary, but changed his opinion and concluded the surgery was reasonable, based on its favorable outcome.

 

The Appeals Board cited the case of Bucio v. County of Merced (2015 Cal. Wrk. Comp. P.D. LEXIS 123) in which the panel concluded that an injured worker was entitled to temporary disability regardless of whether the temporary disability resulted from reasonable medical treatment provided by the defendant or by reasonable medical treatment self-procured by the applicant.  The panel in this case recognized that no statute, including the UR/IMR statutes, distinguish between temporary disability that results from medical treatment self-procured under Labor Code §4605 and Labor Code §4600 medical treatment authorized and paid for by the employer. The panel in that case reasoned that using the Labor Code §4600 medical treatment dispute statute to address the issue of temporary disability would be inconsistent with the terms of Labor Code §4605 regarding self-procured medical treatment.

 

The panel in Bucio relied, in part, on the analysis of Valdez (78 CCC 1209), in which the Supreme Court considered the separate statutory provisions for addressing medical treatment disputes in the context of MPN treatment and for providing temporary disability, and ultimately rejected the employer’s contention that the statutes addressing the resolution of MPN medical treatment dispute precludes consideration of self-procured non-MPN medical reports when addressing issues of disability.

 

In this case the Appeals Board concluded that the UR/IMR statutory process ensures that the injured worker receives reasonable and necessary medical treatment, and does not preclude these workers from claiming entitlement to temporary disability or permanent disability resulting from reasonable self-procured medical treatment, even though the self-procured treatment is not held to the same uniform objective standards as medical treatment provided for by the employer under Labor Code §4600.

 

Citing the case of Hikida (82 CCC 679) an employee is entitled to a non-apportioned compensation for permanent disability caused by reasonable medical treatment of the industrial injury.  In that the UR and IMR statutes are silent on the question of temporary disability, an employee is not precluded from claiming temporary disability even if the disability results from reasonable medical treatment that is self-procured pursuant to Labor Code §4605.

 

The Appeals Board recognized that this case has the potential to expose an employer to liability for the consequences of medical treatment that does not meet the standards of reasonableness established by the Legislature for Labor Code §4600 medical treatment through the UR and IMR process. However, this is the law under the existing statutes the Board held.

 

UR and IMR assure that employees receive treatment that is reasonably required to cure or relieve the injured employee from the effects of his or her injury. This is done by applying uniform objective standards in a specified order. The standards and the order are set forth in Labor Code §4610.5 (c) (2).  These uniform standards ensure not only that the medical treatment provided by a defendant satisfies its obligation under §4600, they also assure that any associated temporary disability is the result of reasonable medical treatment that was necessarily provided.

 

Applying the same reasonableness standards to §4605, self-procured medical treatment as to treatment provided by the employer pursuant to §4600 would assure that the employer’s liability for temporary disability is the same in both instances. However, the uniform standards that apply by statute to Labor Code §4600 medical treatment are not statutorily applied to medical treatment that is self-procured treatment pursuant to §4605. As a result, self-procured medical treatment is not held to the same established standards as medical treatment provided by an employer pursuant to §4600 and that is the law that is applied in this case.

 

It is for the Legislature to determine if the standards that apply to §4600 medical treatment should also apply to medical treatment self-procured pursuant to §4605 for the purpose of determining entitlement to temporary disability and permanent disability.

 

Defendant filed a writ which was denied.

 

Ghattas v. O’Riley Auto Parts: (BPD) (2018 Cal. Wrk Comp. LEXIS 1):

 

The defendant received an RFA on June 5, 2017 and two days later denied the case and mailed notice of denial to applicant and applicant’s treating physician.

 

The defendant also notified the physician that the RFA was denied and that no treatment was authorized because of the injury denial.

 

The WCAB held that when an employer denies a claim within the 90-day provided by LC 5402(b), its responsibility to provide medical pursuant LC 5402 (c) ends, and defendant is not required to perform UR of any pending requests for authorization (RFA).

 

The WCAB found that the defendant’s timely notice of its denial of applicant’s claim terminated its responsibility to provide the worker with medical treatment pursuant to Labor Code §5402 (c), until such time as liability is subsequently adjudicated or is accepted by the defendant.

 

The WCAB stated that had the defendant accepted the applicant’s claim, it would have been required to submit the RFA to UR and respond within the required time frame.

 

The WCAB added that until the applicant’s claim is adjudicated, he may obtain reasonable necessary medical treatment on a lien basis.

 

Hall V. Western Medical (BPD) (2017 Cal. Wrk Comp. LEXIS 581):

 

The WCAB found that defendant’s utilization review determination was untimely.  The WCAB held the Appeals Board had jurisdiction to award homecare requested by the treating physician.

 

The WCAB held that defendant’s utilization review was untimely because it was not completed within the 72-hour time frame required for an expedited review pursuant to Labor Code §4610.

 

The defendant argued that it was not obligated to consider the RFA on expedited basis for review because the requested treatment was not of a nature that required an expedited review.

 

The WCAB held that defendant was not authorized to disregard the treating physician’s characterization that the RFA was required to be handled on an expedited basis. The Appeals Board found no statute or case law allowing defendant to ignore the statutory and regulatory time frames for acting by simply declaring that the RFA did not meet the criteria for expedited review.

 

The WCAB in addition found the evidence did support that the review should be conducted on expedited basis.

 

The WCAB also found that the award of homecare was supported by substantial evidence.

 

Wyant v. American Medical Response (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 587)

 

The WCAB awarded the applicant spinal surgery that was denied on earlier Utilization Review.

 

The physician had submitted an RFA for spinal surgery that was timely denied by Utilization Review.

 

The physician then submitted a second request for authorization by issuing a subsequent RFA indicating the surgery was medically necessary following a documented change in material facts pursuant to Labor Code §4610 (k). The physician in the second RFA for the spinal surgery checked the box marked “resubmission-change in material facts”.

 

The second UR determination found the requested surgery was medically necessary.

 

The defendant asserted that the second utilization review decision was barred because the earlier utilization review determination was effective for 12 months pursuant to Labor Code §4610 (k).

 

The WCAB awarded the treatment because the defendant received additional supporting information and its UR reviewer authorized the treatment based on a determination that was both reasonable and necessary following a material change in facts.

 

Zuniga v. Workers’ Comp. Appeals Bd. (First District Court of Appeal (Div. 2) (83 CCC 1).

 

The WCAB has no authority to order disclosure of Independent Medical Review reviewers’ identities.

 

The Court of Appeal further held that keeping reviewer’s identities confidential does not violate due process

 

The Court of Appeal held that the provision within Labor Code §4610.6(f), requiring Independent Medical Review (IMR) organizations to describe the qualifications of the medical professionals who prepare determinations of medical necessity and to keep the names of the reviewers confidential in all communications outside the IMR organization, does not violate the injured employee’s right to due process.

The Court of Appeal stated that if a new review is granted a new and second reviewer must be appointed. If the second reviewer made by the same reviewer whose opinion was reversed then Independent Medical Review could be challenged on the grounds that the Administrative Director would’ve acted outside his authority because prohibition against using the same reviewer would violate Labor Code §4610 (h) (1) and that, if same reviewer wrote both reports, determination might well have been procured by fraud Labor Code §4610 (h) (2) and reviewer might have material conflict of interests Labor Code §4610 (h) (3) because he or she would be reviewing his or her own prior decision.

 

The Court of Appeal held it was sufficient that the review stated that it was performed by a reviewer who is not associated with the original review.

 

California Department of Corrections v. WCAB (Gomez) (W/D) (83 CCC 530):

 

This case held that a Utilization Review requesting further information was not timely conducted.

 

Labor Code §4610 requires that prospective or concurrent decisions shall be made in a timely fashion that is appropriate for the nature of the employee’s condition, not to exceed five working days from the receipt of the information reasonably necessary to make that determination, but in no event more than 14 days from the date of that medical treatment recommendation by the physician.

 

The phrase working days is not defined in the worker’s compensation statute. However, statutes require that UR services be available from 9 AM to 5:30 PM, Pacific coast time for each normal business day. (Labor Code §4600.4 (a)).

 

The phrase “normal business day” has the same meaning as “business day” under Civil Code section 9. The Civil Code, in turn, defines a “business day” as every day other than every Saturday and such other days as are specified or provided for his holidays in the Government Code of the State of California.

 

Government Code section 6700 (a) list the holidays in this state, but the Friday after Thanksgiving is not included.

 

It therefore appears that the Friday after Thanksgiving is a normal business day and UR services must be available on that date under Labor Code §4600.4 (a).

 

Because the Worker’s Compensation statute requires that UR services be provided on the Friday after Thanksgiving, it follows logically that that date should be considered a “working day” for purposes of commuting the time for a utilization review organization to respond to requests for authorization. The statute requires that the utilization review or stigmatization to work on that day. It can therefore properly be considered a “working day” for purposes of the UR deadline. The interpretation is supported by the regulations governing the UR process. The current regulations dispense with the phrase “working days” and simply use “business days” for the five-day timeframe.

 

Petitioners cite a Government Code section that lists the Friday after Thanksgiving is a holiday. “Government Code 19853 (a). That section is explicitly limited to holidays for “state employees” not the state as a whole. Similarly, the listing of the State Holidays on the California Department of industrial relations website consists of the state government holidays and does not purport to establish official holidays for the state as a whole.

 

Petitioners also point to Cal/OSHA regulations that define “working days” to include Saturday, Sunday or state holidays. However, by its terms, the definition is limited to the Cal/OSHA chapter the regulations and has no application to worker’s compensation procedures. The definition also does not specify what our state holidays for purpose of the regulation, so it is a little assistance. Petitioners also cite various statues and authorities discussing judicial holidays and holidays observed by the WCAB. The Court of Appeal indicated they disagreed that the statues and authority should apply here. The holidays observed by the WCAB and the California courts are not holidays for the state as a whole. There is no indication the Labor Code intended to exclude these holidays from the definition of “working days” for the purposes of utilization review process.

 

The general legislative intent to place treatment authorization decisions in the hands of medical professionals, rather than the Appeals Board, does not override the statutory analysis.

 

The Court of Appeal then indicated that in light of their conclusion they need not decide whether the untimely request for information was reasonable.

 

The writ was denied

 

Catheline v. WCAB (BPD) (83 CCC 537):

 

The Court of Appeal in a writ denied opinion ruled that the IMR process, which went into effect on January 1, 2013, covers any disputes over a utilization review decision if the decision is communicated to the requesting physician on or after July 13, 2013, regardless of the date of injury.

 

The utilization review decision in this case was communicated to the physician on August 12, 2013, thus by the plain terms of the governing statute that decision was subject to the IMR process despite the fact that the date of injury was October 17, 2000.

 

The Court of Appeal found that the statute on its face was clear and unambiguous. The Court found they had no power to ignore the plain meaning of the statute and excise language from it based on an alleged latent ambiguity that does not exist as was argued by the applicant’s attorney.

 

They also rejected the argument that the IMR process violates State constitutional rights to due process of law and to obtain substantial justice expeditiously, inexpensively and without encumbrance of any character.

 

Citing the case of “Stevens” the Court of Appeal indicated their colleagues in the first District thoroughly considered the same arguments and rejected them.

 

The court further concluded that the IMR process provides notice and opportunity to be heard that are sufficient to satisfy the requirements of the federal due process clause.

 

The Court of Appeal further rejected the argument that the board’s decision was not supported by substantial evidence.

 

The petition for writ of review was denied.

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