California: Developing Exception to the UR Decides All Rule

In the olden days, it was the WCAB that decided all medical treatment disputes. That changed in 2004 with the enactment of SB 899 and implementation of revised Lab. Code § 4610. For dates of injury thereafter, the law mandated that all medical treatment requests (Request for Authorization-RFA) were to be submitted by defendant to Utilization Review (UR). The WCAB no longer had jurisdiction over medical treatment disputes. It was intended for UR to have sole authority to approve, modify or deny medical modalities for injured workers. However, like any rule, exceptions developed and were tweaked, as discussed below in two recent Noteworthy Panel Decisions (NPDs).

I. Exception to UR’s Sole Jurisdiction Over MT Disputes

The primary exception to this general rule was established in the WCAB en banc decision of Dubon v. World Restoration (2014) 79 Cal. Comp. Cases 1298 (Appeals Board en banc). In that case, the WCAB held, “If a UR decision is untimely, [or there is no UR decision,] the determination of medical necessity may be made by the WCAB based on substantial medical evidence consistent with Labor Code section 4604.5.” (bracketed text added)

For the past many years since the passage of SB 899, if a medical treatment request was denied, the primary treating physicians (PTP) had to wait a year before attempting once again to submit the request for medical treatment pursuant to Lab. Code § 4610(k):

“A utilization review decision to modify or deny a treatment recommendation shall remain effective for 12 months from the date of the decision without further action by the employer with regard to a further recommendation by the same physician, or another physician within the requesting physician’s practice group, for the same treatment, unless the further recommendation is supported by a documented change in the facts material to the basis of the utilization review decision.” (Emphasis added.)

However, based on recent case law, one big question has been circulating among the legal community recently. What happens when a PTP resubmits a second RFA for the same medical treatment as the first RFA within that 12-month period? As stated above, Lab. Code § 4610(k) provides that if there has not been a “change in the material facts,” the 2nd RFA may be automatically denied as duplicative of the first.

But what if there has been a “change in the material facts” and the PTP has made that very clear in the 2nd RFA? Can the claims adjuster automatically deny the request as duplicative of the first? Absolutely not.

As the decisions summarized below indicate, the defendant must put that 2nd RFA through UR and allow the UR medical experts to determine whether or not the “change in the material facts” exception under Lab. Code § 4610(k) applies. If defendant does not submit the RFA through UR, the matter is treated as if defendant failed to process the 2nd RFA through UR. Jurisdiction to decide the MT dispute is then returned to the WCAB pursuant to Dubon, supra.

That’s a game changer.

II. Issues that Need to Be Reviewed and Established

In order for the WCAB to recover jurisdiction to decide a medical treatment dispute, the following three primary issues must be raised at trial:

1. Was there a “change in the material facts” per Lab. Code § 4610(k) from the time of the submission of the 1st RFA to the time the PTP submitted the 2nd RFA?
2. If there was a “change in the material facts” per Lab. Code § 4610(k), does the WCAB have jurisdiction to decide whether the medical treatment should be authorized?
3. If the WCAB has jurisdiction to decide this medical dispute, is there substantial medical evidence consistent with Lab. Code § 4604.5 to support authorization of the requested medical modality?

III. If PTP Indicates “Material Change in Facts,” 2nd RFA Must Go to UR

If the PTP submits a 2nd RFA within the “prohibited 12 month” period, but has checked the box in the upper left hand corner which reads, “Resubmission – Change in Material Facts,” what is the duty of defendant at that point? This question was answered by the WCAB in the Noteworthy Panel Decision (NPD) of Smith v. Marin General Hospital, 2020 Cal. Wrk. Comp. P.D. LEXIS 20 (Appeals Board panel decision).

In the Smith case, applicant was a nurse who had injured her lumbar spine. Ten years after the injury, on 2/7/2019, applicant’s PTP issued an RFA for a spinal fusion surgery. On 3/8/2019, UR admitted that surgery was necessary, but did not certify a fusion. Instead UR authorized an “alternate surgery” which the PTP refused to perform. The UR decision was upheld by the appeals process after a submission to the Independent Medical Review (IMR) on 4/15/2019.

Subsequently, Ms. Smith’s condition worsened and resulted in a new diagnosis by her PTP of “cauda equine syndrome.” On 9/3/2019, her PTP then submitted a 2nd RFA for the same fusion surgery he had previously requested in the 1st RFA. He included in the 2nd RFA an explanation of the “change in material facts” that had occurred and how seriously her condition had deteriorated since submission of the 1st RFA. The PTP clearly checked the box marked “Resubmission – Change in Material Facts.”

Upon receipt of the RFA, defendant took it upon themselves to decide that the 2nd RFA was not compliant with the material “change in material facts” exception. It was defendant’s opinion that Ms. Smith’s “symptoms had not changed all that much.” Instead of requesting an opinion from the UR medical experts, defendant summarily denied the request as duplicative and deemed it was barred given that the 12-month waiting period had not yet expired.

The WCAB affirmed the WCJ’s decision in favor of Ms. Smith and determined the WCAB now had jurisdiction over the medical treatment dispute. Since the PTP had checked the box on the RFA indicating that it was a “Resubmission – Change in Material Facts,” the defendant was put on notice that this was a viable “resubmission” of the 1st RFA per Lab. Code § 4610(k). Since defendant failed to put the 2nd RFA through UR, to determine the two key issues stated below, jurisdiction to decide those issues now rested with the WCAB. The WCAB explained:

“What defendant’s Petition for Reconsideration fails to recognize is that the 12 month period described in section 4610(k) does not apply to a second RFA, such as the September 3, 2019 RFA in this case, when it is supported by a change in material facts as described in the statute. A defendant is obligated to timely provide reasonable and necessary medical treatment of an industrial injury. (Lab. Code, § 4600.) The obligation to provide treatment is not eliminated merely because it was first determined on different information that the treatment is not medically necessary. To the contrary, the obligation in this case attached when defendant received additional supporting information. An employer has the duty to provide reasonable medical treatment upon learning of the need. (Lab. Code, § 4600: Braewood Convalescent Hospital v. Workers’ Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159, 165 [48 Cal.Comp.Cases 566].”

The “take away” from the Smith case is that if the PTP checks the box on the top right hand corner on page 1 of the 2nd RFA, indicating it is a “Resubmission – Change in Material Facts,” then the defendant is put on notice that it must put the 2nd RFA through UR to determine:

1. Is there a “change in material facts?” and
2. If there was a “change in material facts” since the first RFA, is the medical treatment requested in the 1st and 2nd RFAs now warranted?

If defendant fails to put a 2nd RFA through UR under these circumstances, then the WCAB takes jurisdiction of the medical treatment dispute per Dubon, supra.

IV. What Constitutes a “Change in Material Facts” – Wyant Case

The next issue is to consider is what constitutes a “change in material facts” per Lab. Code § 4610(k). In the Smith case noted above, applicant’s severely deteriorating condition and new diagnosis of “cauda equine syndrome” qualified as a “change in material facts.”

There is another WCAB Noteworthy Panel Decision (NPD) that provides an alternate insight as to what constitutes a “change in the material facts” pursuant to Lab. Code § 4610(k). In the case of Wyant v. American Medical Response (2017) 83 Cal. Comp. Cases 946, 2017 Cal. Wrk. Comp. P.D. LEXIS 587 (Appeals Board panel decision), the applicant had sustained a lumbar spine injury and had surgery to repair her back.

Subsequent to the surgery, the physician submitted a first RFA for a lumbar arthroplasty which UR denied. Essentially, the UR denial was based on a lack of documentation of the attempt by Ms. Wyant to exhaust conservative treatment, before attempting an invasive procedure. The physician submitted a 2nd RFA providing clarification on this issue and documentation on the failure of conservative treatment to date. Therefore, the 2nd UR reviewer had the correct facts upon which to base a decision. Ms. Wyant’s PTP also made sure to check the box marked “Resubmission—Change in Material Facts” at the top of the first page of the 2nd RFA form.

Unlike the defendant in the Smith case above, the defendant in the Wyant case properly sent the 2nd RFA to the UR physician for a determination as to the following:

1. Was there a “change in material facts?” and
2. If there was a “change in material facts” since the first RFA, was the medical treatment requested in the 1st and 2nd RFAs now warranted?

The 2nd UR doctor answered both questions in the affirmative and stated:

“The claimant does meet guidelines for a lumbar arthroplasty at L5-S1 since there was documentation of severe unilateral quadriceps or leg weakness, mild atrophy or unilateral hip/thigh/knee pain, and there was documentation of failure of conservative treatment including PT, home exercise program (HEP) and ESI after the prior L5-S1 decompression by Dr. Esposito.” (Emphasis added.)

The 2nd RFA request was approved by UR. Defendant challenged the approval based on the fact that the 1st UR physician denied the treatment, and the 2nd RFA was submitted within the “prohibited” 12-month “waiting period” of the 1st RFA, contrary to Lab. Code § 4610(k).

The WCAB affirmed the WCJ’s holding in favor of applicant and essentially provided the same explanation for doing so as was provided by the WCAB in the Smith case above:

“What defendant’s objection fails to recognize is that the 12 month period described in section 4610(h) [current law is 4610(k)] does not apply to a second RFA, like the August 30, 2017 RFA in this case, when it is supported by a change in material facts as described in the statute. A defendant is obligated to timely provide reasonable and necessary medical treatment of an industrial injury. (Lab. Code, § 4600) The obligation to provide treatment is not eliminated merely because it was first determined on different information that the treatment is not medically necessary. To the contrary, the obligation in this case attached when defendant received additional supporting information and defendant’s UR reviewer authorized the treatment based upon a determination that it is both reasonable and necessary.” (bracketed text added)

Essentially, the fact that there wasn’t clear documentation in the 1st RFA that conservative treatment had failed, was not fatal to the applicant’s request for treatment, if that documentation could be provided in the 2nd RFA when “Resubmitted – Change in Material Facts” by the PTP.

V. Conclusion

In summary, the above cases illustrate that there are exceptions to the rule that UR must determine all medical treatment disputes. The WCAB may exercise jurisdiction of a medical treatment issue when there has been no attempt at UR or if the UR decision is untimely. Also, if defendant fails to submit a 2nd RFA (resubmitted due to change in facts) through the UR process, that may qualify as an exception to the rule. (See Smith, supra.)

Also, it should be noted that if defendant properly sends the 2nd RFA (resubmitted due to change in facts) through UR, but fails to follow the 2nd UR’s legitimate recommendation, claiming it is barred by Lab. Codr § 4610(k) as a 2nd request within the 12-month rule, that may also qualify as an exception to the rule. (See Wyant, supra.)

Practice Tip: Most importantly, the above analysis may provide a tool for injured workers who have mistakenly been denied treatment the first time through the UR process. If, for some reason, the 1st UR reviewer does not catch the fact that conservative treatment has been tried and failed, the PTP has another opportunity, through a 2nd RFA, “Resubmission-Change of Material Facts” to make sure that this key information is brought to the attention of the UR reviewer. And, as in the Wyant case, the reasonable and necessary medical treatment can then be properly authorized, either by the UR physician, or by a WCAB determination or both.

Practitioners should check the subsequent history of any cases before citing to them.

Any information or opinions contained in this commentary are not necessarily endorsed by LexisNexis® or its affiliates.

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