Workers' Compensation

California: WCAB Panel Finds Defense Counsel’s Failure to Provide RFA to Claims Administrator Was Unreasonable

Sometimes common sense trumps strict application of UR rules

In Czech v. Bank of America, 2016 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB panel affirmed the WCJ’s finding that the defendant failed to timely complete utilization review (UR) pursuant to Labor Code § 4610 [LC 4610] and that the applicant who suffered industrial orthopedic injuries on 4/3/2012 was entitled to medical treatment in the form of right sacroiliac joint rhizotomy and neurolysis, right piriformis Botox injections and 30-day trial of inferential unit.

(Publisher’s Note: Citations link to; bracketed cites to Lexis Advance.)

Here, the applicant sent a copy of an RFA for recommended treatment to the defendant’s attorney rather than directly to the defendant. The defendant’s attorney asserted, however, that it did not have an obligation to give the RFA to the defendant and that because neither the claims administrator nor the UR organization actually received the RFA, the defendant’s duty to perform UR was not triggered and treatment should not have been awarded.

The WCAB panel found that, although 8 Cal. Code Reg. §§ 9792.6.1(a)(1) and 9792.9.1(a)(1) [R 9792.6.1, R 9792.9.1] provide that the UR review timeframe begins when either the claims adjuster or UR reviewer organization receives an RFA, in this case the defendant’s attorney should have transmitted the RFA to the claims administrator within a reasonable time after receiving it so that the defendant could submit an RFA for UR. The attorney’s failure to do so was unreasonable such that the WCJ properly awarded treatment.

Additionally, the WCAB panel reasoned that the defendants have a continuing affirmative duty under 8 Cal. Code Reg. § 10109 [R 10109] to conduct a good faith investigation of a claim and to provide benefits when due, and that, here, the defendant had knowledge that a treatment request was made and should have taken active steps to obtain and review the missing RFA rather than object to the treatment on the basis that the RFA was not received.


The Czech case is another case in a growing number of WCAB panel cases that seem to suggest that a defendant cannot always rely on an applicable statute or regulation when deciding whether to authorize recommended medical treatment. For example, in Czech, there was no dispute that California Code of Regulations, title 8, Sections 9792.9.1(a)(1) and 9792.6.1(a) specifically required that the request for authorization (RFA) be transmitted to the claims administrator or its utilization review organization. This obviously was not done.

However, rather than strictly apply these rules, the panel instead examined the employer’s affirmative duty to provide medical treatment. Based on this obligation, the panel concluded that the defense attorney had a duty to transmit the RFA to the claims administrator which would have then started the utilization review process. Although the panel does not indicate an appropriate timeframe for the defense attorney and claims administrator to forward and submit the RFA to utilization review, since the request was never forwarded to the claims administrator, the disputed medical treatment was awarded.

Cases like Czech are not telling the defendant to throw out the rules when it comes to reviewing treatment requests. Indeed, a defendant would be well advised to still follow the rules when reviewing treatment requests. However, what these cases are telling the defendant is to take into consideration the reasonableness of the position they are taking when denying treatment.  If the taken position is too harsh or if a simple act, such as forwarding an RFA to a claims administrator, is all that is needed so as to allow the system to function, it is likely that the commissioners are going to look at the defendant’s actions. In these cases, there is a good chance the commissioners are going to find a way to award the disputed treatment.

Read the Czech noteworthy panel decision.

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