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California: Who Bears the Burden for a Faulty Fax?

June 21, 2020 (9 min read)

In the realm of workers’ compensation law, the concept of “burden of proof” rarely floats from one party to the another in a seamless fashion. In fact, it’s often a challenge to keep track of when and if the burden has shifted to the other side. Nowhere is this more evident than when injured workers pursue their requests for medical treatment. The Noteworthy Panel Decision (NPD) discussed below, reminds us of the necessity to be mindful of these ebbs and flows of scholastic burden or else practitioners may be caught in undesirable penalty territory.

I. PTP of Wheelchair-Bound Injured Worker Requests MT

In the NPD of Miller v. Apple One Employment Services, 2020 Cal. Wrk. Comp. P.D. LEXIS 95, applicant, an administrative coordinator, sustained a very serious spinal cord injury which resulted in wheelchair dependency. In his report dated 2/13/2019, the employee’s primary treating physician (PTP), Dr. Arbitbol commented:

“Without her wheelchair, Ms. Miller would be confined to her bed. Without a wheelchair accessible van, Ms. Miller is confined to her home…[S]he has lost the ability to stand without help and without suffering excruciating pain.”

Then in bold, underlined typeface, he wrote, “Due to … her medical condition, this patient requires 24 hr attendant care by CAN/HHA to prevent injury and meet current patient needs.”

On 3/19/2019, Dr. Arbitbol then submitted two Requests for Authorizations (RFAs) to the claims adjuster requesting, among other medical necessities, a TENS Unit, wheelchair cushion, home health care and a wheelchair accessible van. The key issue in this case is that the PTP checked the box on the upper left hand corner of the DWC Form RFA to process this request on an “expedited” basis.

II. “Expedited” UR Review Must Be Issued Within 72 hours

Why is that checked “expedited” box so important? The “expedited” box request is critically important because it alerts the adjuster that this is no ordinary request. This request must be expedited because failure to do so could result in an “imminent and serious threat” to the injured workers’ health. The PTP’s act of checking the “expedited” box significantly shortens the time frame within which the claims adjuster must obtain a Utilization Review (UR) determination.

In general, per 8 Cal. Code Reg. § 9792.9.1(c)(3), UR reviews must occur within “5 business days from the date of receipt of the completed DWC Form RFA.” However, pursuant to 8 Cal. Code Reg. § 9792.9.1(c)(4), for expedited reviews of RFAs, that time period is reduced to “72 hours after the receipt of the written information reasonably necessary to make the determination.”

In the Miller case, the PTP had checked the “expedited” box on the RFA he submitted on 3/19/2019. Therefore, the UR determination was required to be issued within 72 hours, or on or before 3/22/2019.

On 3/26/2019, the TENS Unit and the wheelchair cushion were authorized, but the request for the wheelchair accessible van was removed from the UR process and deferred. On 4/11/2019, the home health care request, along with the other medical treatment modalities, were denied by UR.

III. Who Is Responsible for a Faulty Fax?

Applicant claimed that defendant’s UR denial was untimely since it was not processed within the “expedited” 72-hour time period or on or before 3/22/2019. However, defendant argued that they did not receive a complete RFA document in compliance with 8 Cal. Code Reg. § 9792.6.1 until sometime on or after 4/8/2019. Therefore, their due date for response was well beyond the deadline of 3/22/2019 and was arguably not untimely.

This issue of whether the UR decision was timely can’t be decided until the facts behind the arguments of both defense and applicant are carefully examined, and burdens of proof are appropriately assigned. At trial, applicant offered proof that the entire 25-page RFA had been sent on 3/19/2019. However, defense offered proof that they had only received 22 pages of the 25 pages FAXed to defendant on 3/19/2019.

The interesting question presented to the court in this case is, “Which party is responsible when a FAX transmission is faulty, applicant or defense?”

The WCAB explained that “an applicant’s duty to serve RFAs properly must be reconciled with a defendant’s responsibility to investigate the need for benefits.” They then discussed the interplay between the rules of how to properly submit an RFA and the duty to investigate whether an applicant is entitled to benefits (8 Cal. Code Reg. § 10109).

The WCAB examined the PTP’s report dated 2/13/2019, and noticed that it met all of the regulatory requirements for a properly submitted RFA. Once defendant was in possession of this report (regardless they were in possession of a formal DWC Form RFA), defendant had been put on notice that applicant needed medical treatment and pursuant to Reg. 10109, the claims adjuster was then mandated to investigate further.

Reg. 10109(b) provides:

“(b) A reasonable investigation must attempt to obtain the information needed to determine and timely provide each benefit, if any, which may be due the employee.

(1) The administrator may not restrict its investigation to preparing objections or defenses to a claim, but must fully and fairly gather the pertinent information, whether that information requires or excuses benefit payment. The investigation must supply the information needed to provide timely benefits and to document for audit the administrator's basis for its claims decisions. The claimant's burden of proof before the Appeal Board does not excuse the administrator's duty to investigate the claim.

(2) The claims administrator may not restrict its investigation to the specific benefit claimed if the nature of the claim suggests that other benefits might also be due.(c) The duty to investigate requires further investigation if the claims administrator receives later information, not covered in an earlier investigation, which might affect benefits due. (d) The claims administrator must document in its claim file the investigatory acts undertaken and the information obtained as a result of the investigation. This documentation shall be retained in the claim file and available for audit review.”

(c) The duty to investigate requires further investigation if the claims administrator receives later information, not covered in an earlier investigation, which might affect benefits due.

(d) The claims administrator must document in its claim file the investigatory acts undertaken and the information obtained as a result of the investigation. This documentation shall be retained in the claim file and available for audit review.”

In order to emphasize the importance of investigating when the adjuster’s duty was triggered under 8 Cal. Code Reg. § 10109, the WCAB “pull quoted” pertinent sections from the following well-known cases:

After considering the facts, the WCAB made the determination that the RFA had been properly submitted by the PTP, and they shifted responsibility to defendant as the appropriate party to take investigative action. They further explained the basis for their position as follows:

“The problem started with a faulty fax transmission. Defendant did not receive the first three pages, and therefore did not receive the cover page informing them that applicant was submitting two RFA’s. Receipt of an obviously incomplete FAX should trigger an inquiry on a defendant’s part. Here, the error of omission was not immediately obvious by looking at the first page of the fax. However, the body of Dr. Arbitbol’s 2/13/2019 report does make clear that he is trying to get certification for the items on the (“missing”) RFA. On that basis, defendant had a duty to conduct a reasonable and timely investigation upon receiving this knowledge of an injury…

…Defendant is obligated to review the entire RFA and the accompanying documents. Defendant did not timely investigate the facts to determine the extent of its obligation and the needs of the employee. Therefore, without initiating any investigation, defendant simply waited for further service of the missing, first RFA. Under these circumstances, we find defendant did not timely conduct UR.”

IV. UR Deemed Untimely, WCAB Has Jurisdiction Over MT

What are the consequences of defendant’s untimely UR? Since the UR was deemed untimely, the WCAB had jurisdiction to decide the medical treatment dispute pursuant to the holding in Dubon v. World Restoration Inc. (2014) 79 Cal. Comp. Cases 1298 (Appeals Board en banc).

The next step was for the WCAB to determine whether substantial medical evidence existed to support authorization of the medical treatment requested. Indeed, they found substantial evidence did exist and ruled in favor of the applicant on that issue.

Lastly, the WCAB also determined the final issue at stake in favor of the applicant. When applicant appealed her UR denial to Independent Medical Review (IMR), the WCAB concluded that Ms. Miller did not waive her rights to request a determination from the WCAB on the issue of the alleged untimely UR denial.

V. Conclusion

As several NPDs have reported recently, it is incumbent upon defendants, and especially claims adjusters to take note of special circumstances which may alter the usual format for determinations of medical treatment disputes. If a PTP has indicated that the UR process for an RFA must be expedited, then the shortened timeframe for a response must be observed.

As illustrated in the Miller case discussed above, if an adjuster has adequate notice that medical treatment or any type of a workers’ compensation benefit may be warranted, the adjuster must timely investigate what benefits might be due, and the amount of said benefits. Failure to conduct a full-fledged timely investigation may well place the defendant in an untenable position.

WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffith v. WCAB (1989) 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145]. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges [see Gee v. Workers’ Comp. Appeals Bd. (2002) 96 Cal. App. 4th 1418, 1425 fn. 6, 67 Cal. Comp. Cases 236]. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive [see Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (Appeals Board En Banc Opinion)].

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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