California Utilization Review: Prospective vs. Retrospective Review

A recent decision with an interesting fact pattern provides analysis of retrospective vs. prospective RFA, retro care and UR review on delayed benefits

By Richard M. Jacobsmeyer, Esq.

The W.C.A.B. has affirmed a Findings and Award determining a defendant failed to conduct timely retrospective UR on a host of pending medical treatment requests, and rejected defendant’s arguments that a timely prospective utilization review determination of the most recent medical report from the PTP resulted in a timely denial of treatment requests.

The noteworthy panel decision of Belling v. United Parcel Service, Inc., 2015 Cal. Wrk. Comp. P.D. LEXIS --, involved a contentious claim for both specific and contemporaneous cumulative claims for injuries arising out of an aneurysm with intercranial hemorrhage, hypertension, fatigue and multiple other sequelae. Litigation ensued from the date of injury in 2006 until a final decision determining liability issued on June 21, 2013 by the W.C.A.B. in its order denying defendant’s Petition for Reconsideration from the finding of injury.

While the matter was pending, defendant received numerous medical reports and RFA’s requesting various treatment and attendant care services as the injured worker was not capable of taking care of himself since his injury. (The case history indicates his condition was sufficiently disabling that he was unable to provide a history to the panel QME, Dr. Hirsh.) Defendant responded to the RFA’s submitted during the contest over compensability by deferring its decisions on UR pending a determination on liability.

Subsequent to the compensability decision of the W.C.A.B. becoming final, Defendant received a report from the applicant’s treating physician dated 1/21/14 requesting treatment which included 24 hr per day attendant care, assessment of the applicant’s home for modifications, assignment of a nurse case manager, electric wheelchair, a modified van and other services. Defendant responded with a denial of the RFA for these services dated 2/4/14.

In the litigation over the medical treatment and denial by UR, the question arose as to when defendant was obligated to initiate UR. Defendant contended it responded to the 1/21/14 RFA timely to satisfy its obligation to conduct UR, and applicant asserted the obligation arose when liability was determined.

In its decision, the W.C.A.B. noted while Labor Code § 4610(g)(7) allows a defendant to defer UR until a final decision is made on liability, subsection (g)(8) requires the employer to begin UR on retrospective requests for treatment “on the date the determination of the employer’s liability becomes final” as well as initiating UR for prospective requests from receipt of RFAs after liability has been determined. In the case before it, the W.C.A.B. observed there were multiple medical reports providing detailed information about the applicant’s medical needs. The W.C.A.B. indicated defendant was well aware that the applicant’s spouse had been providing many of the provided services based on reporting in the PTP and QME reports. Therefore, the treatment that had been requested during the pendency of the liability dispute had already been provided and required retrospective review commencing with the finality of the decision on liability. The applicant was clearly catastrophically disabled, required extensive medical and attendant care, was wheelchair bound and completely dependent on his wife for his daily needs. The W.C.A.B. then noted:

“…Although defendant was not required to conduct UR of Dr. Burstein's treatment recommendations while it was disputing liability for applicant's claimed injuries. . . defendant was required to conduct a UR of the treatment requests, initially set forth in Dr. Burstein's July 22, 2010 report (Exhibit 12) and reiterated verbatim thereafter, immediately upon the date the determination of defendant's liability became final because the requested treatment was provided by applicant's wife, making it retrospective. On June 21, 2013, we affirmed the WCJ’s determination of defendant's liability in this case. (Order Denying Reconsideration, June 21, 2013.) Defendant, however, did not initiate UR until January 28, 2014. (MOH/SOE, February 26, 2015, 2:19-25) This is well beyond the permissible time period in section 4610(g)(8), and therefore, defendant’s UR denial that issued on February 4, 2014 was untimely.”

The W.C.A.B. further noted defendant’s obligation to provide medical treatment could not be satisfied by passively waiting for a medical report to come in after liability had been determined on pick up the pieces of medical treatment at that time. Instead the Board noted the affirmative obligation of defendant to investigate and provide necessary treatment.

“. . .We find defendant's passive reaction to Dr. Burstein's repeated requests for authorization of the treatment recommendations at issue here, both inexcusable and troubling. Certainly after receiving the final determination of its liability for applicant's injury claims, it was incumbent upon defendant to take prudent steps to insure its compliance with its mandatory obligation under sections 4600 and 4610(g)(8). It did not do so.”

The W.C.A.B. also firmly rejected defendant’s arguments that there was not substantial evidence to support the disputed treatment and therefore the WCJ’s decision was not supported by sufficient medical evidence for the treatment to be considered reasonable and necessary. The W.C.A.B., however, found that the multiple, detailed requests from the applicant’s PTP more than met the burden to document the medical necessity of the requested treatment.

Commentary:

While the ability to delay determinations of medical necessity in UR is clearly set out in Labor Code § 4610 and are well known to almost all in the WC community, the corollary responsibility to affirmatively take steps to determine appropriate medical treatment once liability has been established has been much more amorphous. The W.C.A.B.’s decision in this case presents a clear instruction that once the liability determination has become final, defendants are under an obligation to reach back into the file and begin reviewing the record to determine what treatment must be provided and to retrospectively review pending RFAs.

Defendant in this case waited over 6 months from the time its liability became clear (June 2013) to take any action on provision of medical treatment. Then it simply put the PTP’s RFA through UR with resulting denials without, at least as far as the record documents, any effort to determine what services it would provide. The record was clear the employee was severely disabled, needed extensive medical attention and was incapable of handling even the most basic of personal needs without assistance. The W.C.A.B.’s ire with defendant’s failure to show any initiative to extend medical treatment in such a case is very clearly expressed.

The W.C.A.B.’s admonitions concerning potential Audit Unit referral should be heeded by any claims administrator who finds itself in a position to have to pick up medical treatment in a disputed case. The obligation to provide benefits requires the claims administrator to affirmatively take an active role in determining what treatment should have been provided and what treatment that was provided needs to be paid for and continued.

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