Workers' Compensation

California: More UR Timeliness Nuances Decided by WCAB Panel

WCAB panel determines single RFA requires single response even where multiple modalities requested

A recent WCAB panel decision has provided additional guidance in the seemingly endless stream of issues involving nuances in timing of UR determinations for identifying when the WCAB may have jurisdiction to decide medical treatment disputes under the en banc decision in Dubon v. World Restoration (2014) 79 Cal.Comp.Cases 1298 [79 CCC 1298] (Appeals Board en banc decision).

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In Cerna Romero v. Stones and Traditions, 2016 Cal. Wrk. Comp. P.D. LEXIS --, the issue of timeliness to two UR determinations was presented in a single trial. As to the first UR decision, the WCJ found the determination was late but declined to award the treatment finding on the merits that the determinations to partially approve requested acupuncture and deny provision of Lidoderm patches were medically appropriate.

On the second determination there was a request for four separate treatments: colonoscopy, oxycodone, omeprazole and an H-wave device. The request was received on 9/1/15. On 9/8/15 a request for further information was made to the requesting physician asking about the history of gastrointestinal bleeding. On 9/14/15, a UR decision was issued approving the colonoscopy but denying the other three measures. The WCJ, finding no legal authority to support either side’s position, agreed with the applicant’s argument the determinations on the oxycodone and H-Wave were untimely. The WCJ reasoned while the determination was timely as to the colonoscopy and omeprazole based on the request for additional information, the UR physician did not request additional information as to the oxycodone or the H-wave device, and, therefore, the time frame for responding to those treatment requests was 5 business days without an extension to 14 days based on the request for additional information under Labor Code § 4610(g) [LC 4610].

As to the first UR decision, which was effectively upheld by the WCJ, the panel felt the issue was moot given the WCJ’s decision to not award the contested treatment. However, as to the second UR decision the WCAB panel rejected the WCJ’s argument that the UR physician should have issued a decision within 5 days as to the requested treatment for which additional information was not requested and only delay a decision on the treatment for which additional data was requested. The WCAB panel commented as follows:

“The September 14, 2015 UR decision was a prospective review of the PTP's RFA for four different treatment modalities. The UR physician requested additional information pertaining to two of the treatment modalities and issued a decision within 14 days as required by Labor Code section 4610. The WCJ reasoned that the UR physician should have issued a decision regarding the two treatment modalities for which no additional information was required within 5 days. We disagree. Rule 9792.9.1 [R 9792.9.1] provides that an RFA triggers the timelines for completing utilization review and does not contemplate different timelines for different treatment requests within an RFA. Accordingly, the September 14, 2015 UR decision is timely as to all modalities requested as part of the RFA.”

The WCAB therefore rescinded the WCJ’s Findings and Award and substituted a new award fining the 9/14/15 UR determination was timely.

COMMENTARY:

This decision certainly relieves an additional pressure to UR vendors where there are multiple requests for treatment that may be completely unrelated (as occurred here). If the WCJ’s finding had been upheld, the necessity to issue multiple UR determinations for the same RFA would have placed an additional burden on what is already a tightly controlled time frame for making and communicating responses to RFAs. Certainly the panel’s reliance on the statutory language applying the UR timeframes to RFA’s and not to individual modalities of treatment seems to provide a compelling legal basis for the decision.

Of course this is not necessarily the last word on this issue. We have the opinion of three of the current six commissioners on this but given the recent history of split opinions expressing disagreements on UR/IMR timing issues, it is certainly possible that we could get a different result with a different panel of commissioners. Adding to the uncertainty is the recent announcement by WCAB Chairwoman Ronnie Caplane that she is leaving the board at the end of this month. Given the reluctance of recent governors to make the appointments necessary to complete the full seven slots at the WCAB, it is unclear if we will have additional commissioner(s) to weigh in on this and other pending issues.

Read the Cerno Romero noteworthy panel decision.

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