Got Treatment? How to Expedite Medical Treatment and Avoid Penalties in California

Got Treatment? How to Expedite Medical Treatment and Avoid Penalties in California

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The recent panel decision of Castrillo v. Catholic Health Care West, 2012 Cal. Wrk. Comp. P.D. LEXIS 454, presents an interesting slant on a judge’s denial of the applicant’s request for penalties. In order to expedite medical treatment and avoid exposure to penalties, the prudent practitioner will master the intricacies of the following two procedures:

1. Medical Treatment (MT) Requests: The physician’s MT request must be appropriate and comply with all regulations. A non-compliant MT request will not trigger the Utilization Review (UR) time period.

2. Utilization Review (UR): Once a MT request has been properly served, claims administrators must perform a timely and valid Utilization Review (UR) or it will not be admissible as evidence to support a denial of MT.

Understanding the mechanics behind these procedures will become even more important once SB863 kicks into gear. As of January 1, 2013 the Independent Medical Review (IMR) will be added to the mix and will complicate things even further. (See NEW LC §§4610.5 and 4610.6.) This is due to the fact that a valid UR decision is a prerequisite to commencement of the IMR process. New LC §4610.5 provides that if the IW objects to a valid UR decision, the injured worker (IW) has thirty (30) days to request an appeal of that decision through the “Independent Medical Review” (IMR) process.

The questions for cases in 2013 and beyond will be:

  • If the UR decision is deemed invalid, what happens next?
  • Does the MT request even get to IMR stage?
  • Or does the WCAB make the determination on MT?

BUT before we get there, it’s important to understand the proper procedures for MT requests and UR decisions. As illustrated in the Castrillo case, these issues can often present confusing and unfortunate situations for all.

At issue in the Castrillo case were medical treatment requests for two of Cheryl Castrillo’s significant industrial injuries. On November 15, 2010, the Findings and Award (F&A) on these two underlying cases were issued as follows:

1. An F&A for Permanent Disability (PD) of 91% with further MT for the cumulative trauma ending on May 15, 1998 (ADJ1225282); and

2. An F&A for PD of 23% with further MT for the specific injury in April of 1998 (ADJ3069813).

Subsequently, in August of 2011, Ms. Castrillo’s primary treating physician (PTP), Dr. Sobol, issued a report requesting a variety of medical treatment modalities, including a recommendation for a nurse case manager. 

There was some confusion as to the selection of a nurse case manager, given that Ms. Castrillo resides in Virginia. Applicant interpreted this as a delay in authorization of MT and filed a petition for penalties.

A trial was held on the penalty issue. The Judge issued his Findings and Order on August 1, 2012, holding that there was no basis for penalties, as there was no substantial evidence presented to establish that defendant had unreasonably delayed authorization of medical treatment.

Several questions were posed in this case that warrant comment and consideration.

1. Was there a valid medical treatment request?

AD Rule §9792.6(o) provides: “If a narrative [request] format is used, the document shall be clearly marked at the top that it is a request for authorization. This applies to all MT requests.” (Emphasis added.) Defendant in the Castrillo case did not raise this as an issue. Therefore, it is deemed waived.

2. Was there a valid Utilization Review (UR) review of the MT request?

UR is governed by LC §4610 and 8 CCR §§9792.6 - 9792.15. The UR decision must be timely and must comply with all requirements for a proper UR determination. Otherwise, the report will be deemed invalid and will not be admissible in as evidence to support the UR decision. SCIF v. WCAB (Sandhagen), (2009) 74 Cal Comp Cases 835 (3rd DCA) (CA S. Ct.); Academy of Arts College v. WCAB (Zedd), (2011) 76 Cal Comp Cases 352. The judge in Castrillo deemed the UR decision valid.

3. What triggers the commencement of the UR time period?

In order to trigger the UR time period, must the physician serve the claims administrator, as well as the defense attorney? If the doctor only serves the defense attorney and not the claims administrator, is the UR time period tolled until the claims administrator actually receives the request? 

The Judge in Castrillo held that the UR time period does not begin to run unless and until the claim administrator receives the MT request, which is consistent with 8 CCR §9792.9(a). The Judge found in Castrillo that proper service was made only on the defense attorney. The Judge held that the UR time period did not start to run until the defense attorney served the MT on the claims administrator. Therefore there was no delay in authorization of MT and no basis for imposition of penalties on that issue.

4. Is “working day” equivalent to the term “business day?”

“Working day” (as opposed to “business day”) appears to be the preferred term used in SB863, (as well as in other sections of the Labor Code.) For instance, see LC §4062.2(b), “No earlier than the 1st working day…”

In the Castrillo case, applicant argued that the UR decision was untimely. She relied on 8 CCR §9792.9(b)(1) which states, “Prospective or concurrent decisions shall be made in a timely fashion that is appropriate for the nature of the injured worker's condition, not to exceed five (5) working days from the date of receipt of the written request for authorization.” (Emphasis added.) See also LC §4610(g)(1).


Applicant argued that the UR decision should have been made within 5 days of the MT request.

NOTE: Applicant’s 5 day time period argument is questionable given the maximum fourteen (14) day period allotted under LC §4610(g)(1). However, awareness of the definition of the term “working day” is important, in that “working day” is a term that is used throughout both the current Labor Code and the reform law of SB863.

In any event, applicant proposed that the definition of “working day” should be consistent with the definition of “workday” found in LC §500(a).  LC §500(a) defines “workday” as any consecutive 24-hour period…” which includes Saturday and Sunday. Applicant noted that the employer in this case was a hospital and hospitals are open seven (7) days a week. Therefore, the UR time period should include any five 5 days of the week, including Saturday and Sunday. This was a creative, but unsuccessful, argument by applicant.

The Judge commented that the employer in this case may be open 7 days a week. However, the more relevant issue was whether the claims administration office was open 7 days a week. The Judge noted that no evidence was presented on this issue. So no finding could be made based on that assertion.

Instead, the judge stated at page 9 of his Report and Recommendation, “Labor Code §4610(g)(1) requires a decision within five “working days,” not five calendar days as argued by applicant. Labor Code §4600.4(b) and 8 CCR §9792.9(b)(5) provide a definition of “normal business day” by referencing the definition of “business day” found in Civil Code §9. Business days do not include weekends or holidays. The undersigned concluded that “working day” is the same as “business day” for purposes of utilization review.” Again, no basis for delay and no basis for imposition of penalties was found to exist.

5. What is the proper procedure for selection a nurse case manager?

In the Castrillo case, the injured worker lived in Virginia. Naturally, she selected a nurse case manager in her area. The defendant, on the other hand, selected one based in California. Because of the delay in coordinating this issue, the applicant filed a petition for penalties. In deciding this issue the Judge referred to the case of Lamin v. City of LA, (2004) 69 Cal. Comp. Cases 1002, 2004 Cal. Wrk. Comp. LEXIS 241, which set forth the proper procedure for selecting a nurse case manager, as follows:

“(1) The employer or insurance carrier should initially designate a nurse case manager;

(2) If the applicant objects (at any time) to the person designated by the defendant, the parties should confer and jointly select a nurse case manager (i.e., an "agreed" nurse case manager); and

(3) If the parties are unable to agree on an appropriate nurse case manager within a reasonable period of time (which time period may vary depending on the particular circumstances of the case), the Judge should resolve the parties' dispute and appoint a nurse case manager.”

After analyzing the facts in this case, and then applying the relevant law, the judge determined there was no basis for penalties on any of the issues raised.

CONCLUSION: The “take-away” from the Castrillo case is to make sure all of the players in the workers’ compensation system, including physicians, claims administrators, and attorneys, are aware of the of the intricate rules pertaining to MT requests and the UR process. This will result in a more expeditious delivery of appropriate MT to injured workers and less litigation delay and expense for all parties involved.

© Copyright 2012 LexisNexis. All rights reserved. This case summary will appear in a forthcoming issue of the California WCAB Noteworthy Panel Decisions Reporter (LexisNexis).

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