California: WCAB Imposes Difficult Standards for Overturning a UR Decision

The WCAB, in two recent noteworthy panel decisions, has imposed a difficult standard for applicants seeking to overturn a utilization review (UR) decision. Do these decisions signal a policy decision on the part of the Board to limit reversals of UR decisions? In the first panel decision, the WCAB, in dicta, noted that the agreed medical examiner’s reports provided no citation to medical papers, studies, guidelines or other medical evidence to support the requested treatment. In the second panel decision, a pre-SB 863 case, the WCAB held that an AME or QME must state that the requested treatment is consistent with the MTUS, or if not within the MTUS, why a variance from the MTUS request was reasonably required.

Case #1: In Otten v. Cardinal Newman High School, 2014 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB reversed the WCJ and held that the applicant with a 7/17/2000 industrial low back and psyche injury did not meet his burden of proving that the defendant’s 10/16/2013 UR determination suffered from a “material procedural defect that undermined the integrity of the UR decision” as described in Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 313 (Appeals Board en banc opinion). The WCAB further held that the applicant did not present substantial medical evidence proving that the requested rhizotomy procedure was reasonable medical treatment.

The WCAB found that the UR physician’s failure to review some of the treating physician reports as well as the agreed medical examiner’s reporting were only minor technical defects in the UR determination that were insufficient to invalidate the UR under Dubon, because review of the additional medical reporting would not have changed the UR determination, which relied upon evidence-based guidelines that did not support the requested radio frequency rhizotomy injection. The WCAB further found that the additional reports of the treating physician merely repeated information that was included in the reports already provided to the UR physician. Moreover, the agreed medical evaluator’s reporting did not address the specific circumstances underlying the requested treatment, nor did it identify any applicable medical guidelines or other medical evidence in its support.

According to the WCAB, the UR determination was not procedurally defective; thus, there was no basis for the WCJ to determine medical necessity pursuant to Dubon, and the issue was subject to independent medical review (IMR) if requested by the applicant.

But even if the UR was defective, the WCAB found, in dicta, that substantial evidence did not support medical necessity of the requested treatment because the treating physician did not identify any applicable medical guidelines or other medical evidence to support the proposed radio frequency ablation and rhizotomy. The WCAB also found that the agreed medical examiner’s reports were conclusory and did not address the applicant’s current circumstances and intervening medical history. The WCAB noted that the agreed medical examiner’s report provided no citation to medical papers, studies, guidelines or other medical evidence to support the requested treatment.

Read the Otten noteworthy panel decision.

Case #2: In Chamberlain v. Humphrey & Giacopuzzi Veterinary Hospital, 2014 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB, amending the WCJ’s decision, held that the defendant’s 4/2/2013 UR denial of the treating physician’s treatment requests pertaining to the applicant’s industrial orthopedic injuries, including chiropractic treatment, home health assistance and gym membership, was timely under Labor Code § 4610(g)(1) and 8 Cal. Code Reg. § 9792.9(b)(2), which require that prospective or concurrent UR decisions issue within five working days from receipt of information reasonably necessary to make the determination, but no more than 14 days from the claims administrator’s receipt of the treatment recommendation, when the treating physician’s report was received by the defendant on 3/22/2013, and, on 3/27/2013 and 3/29/2013, the defendant attempted to obtain additional information from the treating physician regarding the chiropractic treatment but the additional information was never provided.

The WCAB concluded that, when a treating physician fails to respond to requests for additional information, the defendant’s UR denial is timely if it is issued within five days of the last request for additional information (provided that the 14-day absolute time limit is met). Here, the defendant’s 4/2/2013 UR denial was issued 12 days after it received the treating physician’s report, which was within the 14-day time limit for receipt of additional information to make a determination of treatment recommendation. Since the UR denial issued “in no event more than 14 days” from the receipt of the report as required under Labor Code § 4610, the denial as to industrially-related treatment was timely.

The WCAB held that, although the defendant’s request for additional information related only to the chiropractic treatment, the defendant was not required to issue separate partial denials with respect to the requests for gym membership and home health assistance within five days of its 3/22/2013 receipt of the treating physician’s report, when neither Labor Code § 4610 nor 8 Cal. Code Reg. § 9792.9 requires separate partial denials. The WCAB refused to read any such requirement into these provisions because to do so would create “a procedural morass” for defendants issuing UR determinations as well as for injured employees who face statutory deadlines for requesting independent medical review of UR determinations.

The WCAB also held that the defendant’s failure to address the treating physician’s recommendation for pain management follow-ups in UR did not mean that the applicant was automatically entitled to this treatment, but rather the applicant was still required to prove the reasonableness and necessity of the treatment. Here, the agreed medical examiner’s indication that she was concerned about “possible prior pain med seeking behavior,” and the recommendation that the applicant be evaluated by a pain management specialist, were substantial evidence to support the WCJ’s finding that follow-up pain management treatment was reasonable and necessary.

Additionally, the WCAB held that the WCJ erred in awarding chiropractic treatment, home health assistance and a gym membership recommended by the applicant’s treating physician, when neither the mandatory independent review process in Labor Code § 4610.5 nor the current Labor Code § 4062, as amended by SB 863, applied to the treatment recommendations because the applicant’s date of injury, 9/10/2009, was prior to 1/1/2013 and the UR denial was communicated prior to 7/1/2013. Thus, the former version of Labor Code § 4062 was applicable to the treatment recommendations. The applicant timely objected to the defendant’s 4/2/2013 UR determination on 4/26/2013 and, therefore, under former Labor Code § 4062, the dispute was required to be resolved utilizing the agreed medical examiner and qualified medical evaluator provisions of Labor Code § 4062.2. The parties utilized an agreed medical examiner but the agreed medical examiner did not review the treating physician’s reports and did not address home health assistance or chiropractic treatment denied by the defendant’s 4/2/2013 UR. Although the agreed medical examiner may have recommended gym membership to help the applicant lose weight she gained secondary to decreased activity and chronic pain, the industrial nature of her weight gain was still disputed, and the agreed medical examiner did not discuss whether a gym membership, even if medically reasonable on an industrial basis, fell within the presumptively correct medical treatment utilization schedule (MTUS) or, if not within the MTUS, why a variance from the MTUS was reasonably required.

Finally, the WCAB held that the treatment recommendations, including follow-ups with a psychologist, follow-ups with a psychiatrist, a urology consultation, and a neurology consultation, pertaining to alleged injuries to the applicant’s psyche, vision, balance, urological system, brain, and internal organs on 9/10/2009, were not subject to utilization review because the industrial injury to these body parts was still disputed. The WCAB returned the dispute over the authorization of these treatment requests to the trial level for further development of the record and a determination of whether the injury to the disputed body parts was industrially related.

Read the Chamberlain noteworthy panel decision.

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