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California: Is It the Defendant’s Job to Make Sure UR Has the Appropriate Treatment Records?

October 26, 2016 (4 min read)

In McKinney v. Enterprise Rent-A-Car of San Francisco, 2016 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB reversed the WCJ’s finding that the defendant was liable for sanctions under Labor Code § 5813 for bad faith handling of requests for authorization (RFA) from the applicant’s treating physician seeking authorization for various treatment modalities to treat applicant’s 9/23/2014 industrial injury.

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The WCAB held that, contrary to the WCJ’s determination, the defendant’s failure to take the initiative and to submit the applicant’s complete medical record to the utilization review (UR) doctor did not constitute a willful failure to comply with its regulatory and statutory obligations or indicate bad faith actions by the defendant, as it is the primary treating physician, and not the claims adjustor, who is responsible for submitting the necessary medical records with the RFA to substantiate the need for the recommended medical treatment.


While the WCAB concluded that the imposition of sanctions was not justified in this case, the WCAB rejected the defendant’s assertion that the WCAB has no authority to impose sanctions for the improper handling of medical disputes, and held that the WCAB has the authority to impose sanctions under Labor Code § 5813 for bad faith actions or tactics in handling the requests for medical treatment, and it is not precluded from imposing sanctions by the holding in Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298 (Appeals Board en banc opinion) (Dubon II), or by the Administrative Director’s statutory authority over the UR and independent medical review (IMR) processes.

The WCAB reasoned that Dubon II does not address the issue of sanctions in the context of UR, that although Labor Code § 4610(i) gives the Administrative Director specific authority to penalize the employer/insurer for the failure to meet the UR timeframes or other UR provisions, it does not authorize the Administrative Director to impose sanctions under Labor Code § 5813, and that there is nothing in Labor Code § 4610 that excludes the actions of the employer or its claims administrator in the handling of the RFA from imposition of sanctions by the WCAB if those actions are undertaken in bad faith or are frivolous or solely intended to cause delay.


Since Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298 (en banc) (Dubon II), there has been significant litigation relating to determining what, exactly, is the WCAB’s role in enforcing the rules and regulations relating to the appropriate administration of the workers’ compensation medical treatment benefit. In other words, if the utilization review (UR) determination is timely, does the WCAB have any role in making sure the UR process was done appropriately? Are issues relating to the appropriate handling of UR now the exclusive province of Independent Medical Review (IMR) or perhaps the Administrative Director?

This case found that the WCAB still does have the jurisdiction over the UR process to the extent the WCAB can impose sanctions in circumstances of egregious misconduct. However, this panel also concluded that despite this sanction power, sanctions were not appropriate because it may not be the claim’s adjuster’s responsibility to ensure that adequate treatment records are submitted to the UR reviewer. Though the panel stated that they do not specifically address defendant’s duty to ensure the complete records are submitted to UR, by its failure to impose sanctions, it effectively did just that.

Indeed, the panel found that, pursuant to Administrative Director Rules 9785(g) and 9792.6.1(t)(2), it is the primary treating physician’s responsibility to attach the relevant treatment records substantiating the treatment request. The panel argued that it is the primary treating physician and not the claims administrator that knows what medical records support the requested treatment. Therefore, the panel held that defendant’s failure to take the initiative and submit applicant’s complete medical file to the UR reviewer was not an indication of a bad faith tactic.

Placing the responsibility of attaching the relevant treatment records on the treating physician will only make the treating physician’s already difficult job that much more difficult. Moreover, many if not most of the primary treating physicians are not in the position to review, tab and document the entire medical file in connection with each and every treatment request.

Up to this point, most practitioners have assumed that the defendant has some responsibility in getting the relevant treatment records to UR. If this panel is correct and defendant has no responsibility here, the thousands upon thousands of UR determinations that already deny medical treatment because the submitted records “fail to show functional improvement” or “fail to document” a certain physical finding are only likely going to significantly increase.

Read the McKinney noteworthy panel decision.

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