CALIFORNIA COMPENSATION CASES
Vol. 88, No. 5 May 2023
A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions...
By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board
In 2022 there were 7,490 wildfires in California. They burned 362,455 acres...
By Christopher Mahon
Should temporary workers be treated separately under workers’ compensation law due to additional employment and income risks they may incur after workplace injuries? A new study...
Here's a noteworthy panel decision where a family member conveyed essential information to the AME on behalf of the injured employee. The Lexis headnote is below.
CA - NOTEWORTHY PANEL DECISIONS...
Oakland, CA – Part II of a California Workers’ Compensation Institute (CWCI) research series on low- volume/high-cost drugs used to treat California injured workers identifies three Dermatological drugs...
Defendants can submit every prescription request to UR, but is this cost effective and does it fulfill their obligation to provide appropriate medical treatment to cure or relieve injured workers from the effects of their industrial injuries?
In Cordova v. Garaventa Enterprises, 2015 Cal. Wrk. Comp. P.D. LEXIS --, a WCAB panel has clarified when the 12-month effective period for a UR treatment recommendation applies, whether UR decisions issued prior to 7/1/2013 go through IMR, whether an appeal review decision is subject to IMR, and how an unreasonable delay in providing prescription medication after the medication is authorized by a UR doctor entitles an applicant to a Labor Code § 5814 penalty and entitles his attorney to attorney’s fees under Labor Code § 5814.5.
Medical Treatment; Utilization Review; Independent Medical Review
The WCAB rescinded the WCJ’s award of contested prescriptions for the medications Neurontin and Nucynta to treat the applicant’s spine and left upper extremity injuries, and, instead, authorized the 5/21/2013 and 6/24/2013 prescriptions for Neurontin and deferred the decision regarding the prescription for Nucynta.
The defendant originally issued a UR denial for the Nucynta and Neurontin prescriptions on 11/5/2012, but subsequently authorized the prescription for Neurontin by way of a 6/28/2013 UR. The WCAB found that because the prescription for Neurontin was authorized rather than delayed, denied, or modified, the defendant’s 6/28/2013 UR was not subject to the rule in Labor Code § 4610(g)(6) requiring that a UR treatment recommendation remains effective for 12 months from the date of the decision without further action absent a changed condition.
The WCAB further found that contrary to the WCJ’s finding, none of the defendant’s UR decisions that were issued prior to 7/1/2013 were subject to IMR pursuant to Labor Code § 4610.5, because the disputed denials were not communicated to the requesting physician on or after 7/1/2013.
In addition, the defendant’s 7/19/2013 “appeal review” decision was not subject to IMR because it was not a new UR but rather a review of an earlier 11/5/2012 decision.
Finally, there was insufficient evidence to determine whether the UR decisions regarding Nucynta were timely made and whether the defendant relied on Labor Code § 4610(g)(6) or submitted additional requests for that prescription to UR.
Penalties; Delay in Providing Medical Treatment; Utilization Review
The WCAB rescinded the WCJ’s award of penalties and attorney’s fees for the delayed provision of medical treatment to the applicant and held that the defendant’s delay in providing the prescription medication Neurontin after the medication was authorized by the UR doctor was unreasonable, thereby entitling the applicant to a Labor Code § 5814 penalty and the applicant’s attorney to an attorney’s fee under Labor Code § 5814.5 and Ramirez v. Drive Financial Services (2008) 73 Cal. Comp. Cases 1324 (Appeals Board en banc opinion). However, the WCAB found that the defendant could reasonably rely on the UR denial with respect to the denied prescription for Nucynta.
The WCAB admonished the defendant that UR cycles of denials and authorizations for the applicant’s prescription medications appeared arbitrary, given the applicant’s award of medical treatment. The WCAB pointed out that although the defendant was entitled to submit every prescription request to UR, the defendant should consider whether doing so is cost effective and fulfills its obligation to provide the applicant with appropriate medical treatment to cure or relieve him from the effects of his industrial injury.
COMMENTARY: This case underscores the complexity of the current medical treatment process. The initial Utilization Review (UR) determination was issued on November 5, 2012, denying the disputed medications. On June 28, 2013, defendants sent out a second UR determination authorizing the Neurontin 300 mg. On July 19, 2013, defendant then issued an “appeal review” affirming the prior UR denial of the requested medications. Presumably, the July 19, 2013 “appeal review” was the voluntary appeal pursued by the treating physician under the “internal review process” pursuant to California Code of Regulations, Title 8, section 9792.9.1(e)(5)(J). Additionally, the June 28, 2013 UR determination could have very easily been the result of an additional request for authorization submitted by the treating physician. Regardless, this case highlights the complexity of the present review process.
Moreover, in recent cases, the WCAB has repeatedly admonished defendants for not simply authorizing appropriate medical treatment. Here, the panel was upset because applicant had an award for treatment and was being subjected to an endless cycle of UR denials and authorizations. However, the stated purpose behind Senate Bill 863, and more specifically Independent Medical Review, was to prevent Workers’ Compensation Judges from making determinations of medical necessity. It seems paradoxical that the commissioners do not want judges to make these determinations but are admonishing the defendant for not reviewing the physician’s requests and making its own determination concerning medical necessity.
The reality of the current process could very well be that some claims adjusters would rather simply submit a request for authorization through UR instead of looking up the specific treatment guideline and making the call themselves. To put it another way, it may be naïve to assume that the present process involves anything but an endless cycle of UR determinations.
Read the Cordova noteworthy panel decision.
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