California: Timely Utilization Review: WCAB Strictly Applies Bodam Rule

In Gutierrez v. Bigge Crane & Rigging Company, 2015 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB affirmed the WCJ’s finding that the defendant’s utilization review of a request for authorization submitted by the applicant’s treating physician, Douglas Abeles, M.D., for prescription medications Percocet and Norco to treat the applicant’s 1/8/2008 industrial low back injury was invalid pursuant to the holding in Bodam v. San Bernardino Department of Social Services (2014) 79 Cal. Comp. Cases 1519 (lexis.com) [79 CCC 1519 (Lexis Advance)] (Appeals Board significant panel decision), due to the defendant’s failure to establish that it timely communicated the UR determinations to Dr. Abeles’ office within 24 hours after the decisions were made as required by 8 Cal. Code Reg. § 9792.9.1(e)(3) (lexis.com) [R 9792.9.1 (Lexis Advance)].

Because the UR was untimely, the WCJ was authorized to award the requested medical treatment based upon her finding that the applicant’s use of prescribed medications was supported by substantial medical evidence in light of the entire record.

While affirming the WCJ’s medical treatment award, the WCAB did not adopt the WCJ’s view that the defendant was required to show that the UR determinations were communicated directly to the treating physician, but only that they were communicated in some form to the treating physician’s office within 24 hours.

Defense Viewpoint:

We’ve asked defense attorney Richard M. Jacobsmeyer about the Gutierrez decision. Jacobsmeyer states that “Any hope claims administrators and UR Vendors may have had that the W.C.A.B.’s Significant Panel Decision in Bodam v San Bernardino County might be either marginalized or even reversed by a different W.C.A.B. panel appears to be dashed with the recent W.C.A.B. panel decision in Gutierrez v Biggie Crain and Rigging Co.”

As explained by Jacobsmeyer, “The original decision in Bodam only had one current acting Commissioner in the mix (Commissioner Caplane authored the opinion with Deputy Commissioner Sullivan and Commissioner Brass, now on leave, concurring). In Gutierrez, the lead Commissioner is recently appointed Jose Lazo joined by Commissioners Caplane and Zalewski. Relying on the decision in Bodam, the 3 member panel upheld a WCJ’s decision that UR was defective because there was no substantial evidence that the UR determination was timely communicated by fax, email or voice communication to the requesting physician within the 24 hours after the decision was made to delay, deny or modify the request as required by ADR § 9792.9.1(e)(3). In reliance on the W.C.A.B. en banc decision in Dubon v. World Restoration, the failure to meet the statutory time frames for making or communicating a UR decision renders the UR decision invalid, thereby giving jurisdiction to the W.C.A.B. to determine if substantial medical evidence exists to award the contested medical treatment.”

“Given the rather minimal costs involved in many of these decisions, it seems unlikely that a defendant is going to challenge the Bodam ruling in a higher court until such time as a WCJ awards some very controversial treatment or the cost of the treatment warrants the further appeal,” says Jacobsmeyer. “Until such challenge to the W.C.A.B.’s insistence that the legislature did not mean what it said in the prologue to SB 863 (that having medical professionals ultimately determine the necessity of requested treatment furthers the social policy of this state in reference to using evidence-based medicine to provide injured workers with the highest quality of medical care and that the provision of the act establishing independent medical review are necessary to implement that policy), the claims community, UR vendors and defense attorneys are going to have to learn to deal with the W.C.A.B. interpretation of the UR regulations as providing a 24-hour statute of limitations to communicate UR decisions by fax, email or voice to requesting physicians.”

Jacobsmeyer commented further that, “For the most part whether the UR decision was timely communicated by voice, fax or email is not a factual issue but a proof one.  In my experience virtually every UR determination is faxed to the treating physician as soon as it is printed, which is typically within the 24-hour window. The problem we frequently see in the effort to support the UR determination is the lack of documentation to prove the transmittal to the PTP of the UR decision in compliance with the administrative director’s rule. It is up to the UR vendors in conjunction with those who are paying them for their services, to make certain that the documentation of such transmittal is clearly indicated either in the report or else in the fax transmittal cover. Our office typically receives a fax transmittal from many of our clients but it does not indicate who else received the same fax. By sending a single fax to multiple parties, or by indicating multiple parties are receiving the same faxed information simultaneously, the issue of proving the proper communication of the UR decision can be eliminated.”

Applicant Viewpoint:

Julius Young, an applicant’s attorney, commented that “on some issues the current mix of WCAB commissioners seems split, with results depending on what commissioners are assigned to a panel. But not so on the issue of time limits to communicate a UR decision to the requesting treating physician.”

Young points out that in Gutierrez, “newly appointed Commissioner Jose Lazo joined Commissioner Caplane and Zalewski in applying Bodam and a strict reading of AD Rule 9792.9.1(e)(3) to the situation at hand.”

According to Young, “the moral of Gutierrez is that the board will not hesitate to apply the required time limit for a UR decision to be communicated to the PTP. Although the defendant had claimed that certain documentation showed that the UR determination had been communicated in a timely fashion, the WCJ and the WCAB panel were not convinced. Defendant did not meet its burden of showing that the UR determination had been timely communicated to the office of the PTP within 24 hours. Furthermore, the record contained sufficient documentation from the PTP to satisfy both the WCJ and WCAB that the requested medications were consistent with MTUS.”

“Payors and UR vendors will want to take a careful look at their policies and procedures in order to make sure they are complying with these requirements,” says Young. “Since there may be later disputes, this needs to include documentary proof that the communication was timely made. On the other hand, even if there is a violation of the 24 hour time limit, applicants will need to make sure that they introduce sufficient documentation so that there is substantial evidence supporting the medical necessity of the requested treatment.”

Read the Gutierrez noteworthy panel decision.

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