California: Utilization Review Decision Defective When UR Delay Notice Signed Only by UR Nurse, Not Licensed Physician

In Newton v. Jack-In-The-Box, 2014 Cal. Wrk. Comp. P.D. LEXIS --, a WCAB panel has issued a notice of its intention to award an applicant medical treatment in the form of aquatic therapy twice per week for a period of four weeks, as prescribed by the applicant’s treating physician.

The WCAB disagreed with the WCJ’s determination that the defendant’s utilization review decision was materially defective as described in Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 313 (Appeals Board en banc opinion), for its failure to include a list of all the medical records reviewed pursuant to 8 Cal. Code Reg. § 9792.9(l)(3). The WCAB was not persuaded that the failure to describe or identify “24 pages of additional medical report” upon which the UR decision relied, in part, was a material procedural defect that undermined the integrity of the UR decision.

However, the WCAB did find that the UR decision was defective pursuant to the provisions of Labor Code § 4610(e), which provides that no person other than the licensed physician may modify, delay or deny requests for authorization of medical treatment. While the UR decision not to certify the aquatic therapy was ultimately made by the physician in this case, the UR delay notice was signed only by the UR nurse and not by a licensed physician.

The WCAB also found that it was not a violation of due process to address the type of UR defect not explicitly raised at trial, because the parties raised the “issue of UR,” which sufficiently provided notice that the validity of UR was in question.

Read the Newton noteworthy panel decision.

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