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There can be little question that there has been rampant abuse in the medical treatment benefit under California’s workers’ compensation process. As a consequence of this abuse, there have been significant controls legislatively imposed on the benefit. The implementation of these controls started under Governor Gray Davis in 2003 with the passage of Assembly Bill 749 and continued under Governor Arnold Schwarzenegger in 2004 with Senate Bill 899 and ultimately in 2013 with Senate Bill 863 under Governor Jerry Brown.
As a result of these reforms, there is now a “utilization review” (UR) process that reviews requests for authorization (RFA’s) of medical treatment issued by treating physicians. The UR rules place strict requirements on how quickly the UR process must respond to a treating physician’s request for treatment. Specifically, Labor Code Section 4610(i)(1) requires that prospective and concurrent reviews of requests for treatment must be made with five working days from the receipt of the request for treatment and in no event more than fourteen days from the date of the medical treatment recommendation made by the physician.
As a consequence of these strict timeframes, there has been a great deal of litigation over what constitutes a valid request for authorization of treatment. This became significantly more important after the WCAB en banc decided Dubon v. World Restoration (2014) 79 Cal. Comp. Cases 1298 (Dubon II). In Dubon II, the WCAB determined that a workers’ compensation administrative law judge (WCALJ) could still award medical treatment based on a treating physician’s recommendation where the UR review was not timely done.
Recently, a panel of WCAB commissioners addressed the question of what constituted a valid RFA. In Visger v. San Francisco 49ers; Travelers Insurance Co. ADJ9167384, ADJ5108194 a panel of commissioners adopted and incorporated a decision by a WCALJ that found that a request for a one year in-patient rehabilitation program constituted a valid treatment request. The RFA was found to be valid despite the fact the actual treating physician did not sign the RFA but, rather, an unidentified staff member with his office signed in his place.
The WCALJ, and by adoption the WCAB panel, determined that the defendant had been on notice of applicant’s need for this treatment for over one year. It was further found that defendant had failed to timely review a prior request for this treatment and again failed to timely review the present request for this treatment. Finally, it was concluded that the injury in question was a life threatening brain injury, the treating physician did sign the narrative report that supported the RFA, and that the purported defect was “curable” and should not serve as an excuse for the defendant’s failure to act in a timely fashion.
The WCALJ’s decision, and the WCAB panel’s adoption of the decision, is specifically consistent with the stated public policy behind the adoption of the UR process. According to the California Supreme Court in State Comp. Ins. Fund v. Sandhagen (2008) 44 Cal. 4th 230, 73 Cal. Comp. Cases 981, the purpose of the UR legislation was to provide “quality, standardized medical care for workers in a prompt and expeditious manner”. This case may also reflect the WCAB’s willingness to loosely define what constitutes a valid RFA when considering the totality of the circumstances, including defendant’s prior knowledge of the treatment request as well as the severity of the injury involved.
Read the Visger noteworthy panel decision.
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