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California: Appeals Board Review of UR Decisions When Bad Faith Alleged

May 24, 2021 (5 min read)

There should be no question that Independent Medical Review (IMR) is the exclusive mechanism for review of a timely utilization review (UR) determination. That question was laid to rest by the Appeals Board’s decision in Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298 (Appeals Bd. en banc), and it has been emphatically endorsed ever since by appellate level decisions. (See, for example, King v. Comp. Partners, Inc. (2018) 5 Cal. 5th 1039 [83 Cal. Comp. Cases 1523]; Allied Signal Aero v. Workers’ Comp. Appeals Bd. (2019) 35 Cal. App. 5th 1077 [84 Cal. Comp. Cases 367].) Nonetheless, it is not uncommon for parties to suggest that under the particular circumstances of their case, the Appeals Board instead of IMR has jurisdiction to review a timely UR determination. The most recent example is Shauna Van Brunt v. VCA Antech, Inc., 2021 Cal. Wrk. Comp. P.D. LEXIS 114 (Board Panel Decision). Although the UR determinations timely issued and were upheld by IMR, Ms. Van Brunt (applicant) argued that the determinations were issued in “bad faith,” making them subject to review by the Appeals Board. Applicant’s theory was soundly rejected by a unanimous panel. Let’s take a look at the panel’s rationale.

Applicant sustained an industrial injury to her lumbar spine and left lower extremity. She designated Dr. Toufan Razi as her primary treating physician. Between July 9, 2020 and November 6, 2020, Dr. Razi submitted multiple requests to UR for authorization of the prescriptive medication, Buprenorphine. Each prescription requested 450 tablets of Buprenorphine. Between July 15, 2020 and October 22, 2020, UR timely certified progressively reduced quantities of Buprenorphine. The UR determination dated September 22, 2020 certified 360 tablets, and the UR determination dated October 22, 2020 certified 325 tablets.

Applicant sought IMR of the both the September 22, 2020 and the October 22, 2020 UR determinations. IMR upheld both UR determinations, but applicant did not appeal the IMR determination. Instead, she requested an expedited hearing, contending that defendant acted in bad faith by using UR to wean her from a medication which she is dependent on and which had been consistently prescribed by her treating physician. Additionally, applicant argued that the UR determinations were also improper because they were made by different reviewing physicians. Defendant challenged the Appeals Board’s jurisdiction to hear the dispute. The WCJ agreed with defendant and issued a decision finding no jurisdiction to review the timely UR determinations and, similarly, no jurisdiction to review the IMR determinations in absence of an appeal under Labor Code section 4610.6. Applicant sought reconsideration or, in the alternative, removal of the WCJ’s decision.

The panel chose to treat applicant’s petition as a petition for reconsideration. (See Allied Signal Aero v. Workers’ Comp. Appeals Bd., supra, which held that the issue of whether the Appeals’ Board or IMR has jurisdiction to review a UR determination is a final order.)

Next, the panel observed that applicant made no claim that the UR determinations in question were either untimely or not properly served, noting that the only remedy for an alleged incorrect but otherwise timely and properly served UR determination is to file for IMR. While applicant did seek IMR of the September 22, 2020 and October 22, 2020 UR determinations, both of those determinations were upheld by IMR. Applicant’s remedy, thus, the panel stated, was to file an appeal of the IMR determinations, as provided in Labor Code section 4610.6(h). Admittedly, applicant did not do so. Accordingly, the panel agreed with the WCJ that the Appeals Board lacks jurisdiction over the dispute.

Similarly, the panel rejected applicant’s claim that the Appeals Board does have jurisdiction to consider the nature of a defendant’s actions in conjunction with a timely UR/IMR, even absent an appeal of the IMR decision. According to applicant, defendant acted improperly and engaged in bad faith because it used the UR/IMR processes to reduce the amount of Buprenorphine that had been consistently prescribed by Dr. Razi for several years without any change in her circumstances. Relying on Mumm v. Workers’ Comp. Appeals Bd. (2020) 85 Cal. Comp. Cases 647 (writ den.), the panel states, “… each new prescription requires a new request for authorization that must be submitted to UR. Authorization of one prescription does not automatically mean that recurring prescriptions of the medication must be authorized indefinitely; the treating physician has an obligation to document the need for each recurring prescription, especially when the prescriptions are for heavily regulated opioid medication.”

Moreover, the panel points out that it is not improper for the reviewing UR physician when applying the approved criteria to modify a treatment request. (See, Smith v. Workers’ Comp. Appeals Bd. (2009) 46 Cal. 4th 272, 274 [74 Cal. Comp. Cases 575].) Both the September 22, 2020 and October 22, 2020 UR determinations modified Dr. Razi’s request by approving a reduced quantity of Buprenorphine.

The panel also rebuffed applicant’s insistence that the URs of Dr. Razi’s request for authorization of Buprenorphine were improper because multiple physicians, rather than one UR physician, conducted the review. Neither the statutes (Lab. Code § 4610, et seq.) nor the regulations (8 Cal. Code Regs., § 9792.9.1(e)(1)) require all URs pertaining to a single patient or extended course of treatment to be conducted by the same reviewer. The regulation simply requires that the UR reviewer be competent to evaluate the clinical issues involved in the request and that such issues be within the scope of the reviewer’s practice.

It is true that the decision in this case is merely a panel decision—not an en banc or designated as “significant.” Nonetheless it is instructive in several important areas. Foremost, it reminds us that when a UR determination is both timely and properly served, IMR is the appropriate process to challenge the determination—not the Appeals Board. Secondly, an IMR determination upholding a UR decision can be appealed to the Appeals Board, but only under the circumstances described in Labor Code section 4610.6(h). Third, the physician conducting the UR does have the authority to modify a treatment request. Fourth, there is no requirement that all URs pertaining to a single patient or an extended course of treatment must be conducted by the same physician. Most important, the fact that a prescriptive medication has been authorized previously does not mean that subsequent prescriptions of the same medication must be automatically authorized. The treating physician must document the need for each recurring prescription.

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