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California: When Deferral of Utilization Review Not Allowed

August 23, 2019 (4 min read)

Those of you who have been involved in California’s workers’ compensation system for the past 15 years or less probably don’t have much of a sense of how medical treatment disputes used to be resolved. Those were the days prior to Utilization Review (UR). Even for the more “seasoned” comp practitioners (i.e., “old timers”), life before UR is but a distant memory. Before the legislative enactment of Labor Code section 4610, workers’ compensation judges (WCJ) routinely decided medical treatment disputes, based upon evidence in the form of medical-legal reports from physicians. That process was criticized as being too cumbersome, too slow, too expensive, and too inconsistent. UR was touted as an expeditious process grounded in standards and designed to ensure prompt, quality care.

Since UR became mandatory, numerous challenges have been leveled at the process. Consistently, the Courts and the Appeals Board have affirmed the mandatory nature of UR to resolve any and all medical treatment disputes of industrially injured workers, limiting exceptions to those cases in which UR was conducted in an untimely manner. (State Comp. Ins. Fund v, Workers’ Comp. Appeals Bd. (Sandhagen) (2008) 44 Cal. 4th 230 [73 Cal. Comp. Cases 781]; Ramirez v. Workers’ Comp. Appeals Bd. (2017) 10 Cal. App. 5th 205; Dubon v. World Restoration, Inc. (Dubon II) (2014) 79 Cal Comp. Cases 1298 (Appeals Bd. en banc).) And yet, objections to the UR process continued to be raised. One of the latest is the subject of a unanimous panel decision that issued on August 9, 2019. The case is Rosenblum v. Lompoc Unified School District, 2019 Cal. Wrk. Comp. P.D. LEXIS __.

Rosenblum is interesting for two main reasons. First, it shows that notwithstanding Sandhagen’s pronouncement that UR is the mandatory process to review and resolve any and all treatment disputes, employers continue to contest the UR process. Here, defendant argued that it could unilaterally withdraw its UR approval of the requested surgery and use section 4062 to resolve whether it is liable for the approved surgery. Second, the decision acknowledges that WCJs still have a vital role when it comes to medical treatment disputes: specifically, a WCJ has the authority to award medical treatment approved by the employer through UR.

Rosenblum sustained an admitted industrial injury to her right hip and right groin in 2008. She received medical treatment for the injury. In early 2019, her treating physician issued two reports stating that Rosenblum had failed all non-surgical treatment measures and meets the criteria for a right total hip arthroplasty. The treating physician followed those reports with a Request for Approval (RFA) of the arthroplasty to defendant’s claims administrator. The claims administrator submitted the RFA to UR, and a timely UR Determination issued, approving the requested surgery. Several days after the UR decision issued, the claims administrator sent Rosenblum’s treating physician a fax, objecting to his recommendation of surgery. The fax stated that defendant was deferring UR pursuant to section 4610(g)(7), pending a medical-legal opinion on the industrial nature of Rosenblum’s hip osteoarthritis and whether the right hip replacement surgery was related to the industrial injury.

Rosenblum requested an expedited hearing on her need for the right hip surgery, as approved by UR. Defendant argued that the UR determination was flawed because there was no finding that Rosenblum’s 2008 injury was connected to the requested surgery. The WCJ found that he lacked jurisdiction to determine medical issues already approved by a timely UR determination, or to determine the causal connection between the authorized treatment and Rosenblum’s industrial injury. He declined Rosenblum’s request to enforce the UR determination, but did find that defendant is entitled to request a Panel Qualified Medical Evaluator (PQME).

Both parties sought reconsideration. Defendant claimed that sections 4061 and 4062 provide an alternative track (to UR) to dispute an injured worker’s treatment request. Rosenblum argued that the WCJ erred by not enforcing the medical treatment authorized by UR, since a defendant is not permitted to disavow a UR determination that approves the requested treatment. (Lab. Code, section 4610.5(f)(1).)

The panel found defendant’s arguments lacked merit, noting that the “alternative track” theory has been soundly rejected by the Supreme Court and Courts of Appeal. Additionally, the panel did not buy defendant’s belated attempt to defer UR in order to determine its liability for the surgical procedure. The decision points out that defendant did not seek to defer UR when it received the RFA from Rosenblum’s treating physician, as it could have under section 4610(l). Rather, defendant conducted UR of the RFA, and three days after the UR determination approving the surgery, attempted to “withdraw” the UR approval. Lastly, the panel acknowledges the authority of the Appeals Board to award medical treatment that was approved by the employer pursuant to a timely UR.

The Rosenblum panel decision serves as a reminder that UR is the required process to resolve any and all medical treatment disputes of industrially injured employees. Defendants should exercise caution when evaluating an RFA for submission to UR. If there is a question as to defendant’s liability for medical treatment (i.e., an issue of injury AOE/COE or whether the requested treatment is causally connected to the industrial injury), UR can be deferred pursuant to section 4610(l). But, it cannot be deferred after the fact, as defendant attempted here. Finally, WCJs and the Appeals Board have authority to award medical treatment that was specifically approved by the employer either without UR or pursuant to UR.

Practitioners should check the subsequent history of any cases before citing to them.

Any information or opinions contained in this commentary are not necessarily endorsed by LexisNexis® or its affiliates.

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