California: Challenging Utilization Review at an Expedited Heading: Becerra and Corona Panel Decisions

California: Challenging Utilization Review at an Expedited Heading: Becerra and Corona Panel Decisions

By Mark L. Kahn (Associate Chief Judge-Ret.), Arbitrator/Mediator/Attorney - Altman Lunche and Blitstein

LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to lexis.com.

Applicant can challenge whether defendant timely and properly conducted UR at an expedited hearing without going through the LC 4062 [4062] QME process. Applicant can also challenge whether UR was conducted in a timely and proper manner at an expedited hearing while simultaneously going through the LC 4062 process.

In the two recent panel decisions of Becerra v. Jack’s Bindery Inc., 2012 Cal. Wrk. Comp. P.D. LEXIS 451 [2012 Cal. Wrk. Comp. P.D. LEXIS 451] and Corona v. Los Aptos Christian Fellowship Childcare, 2012 Cal. Wrk. Comp. P.D. LEXIS 459 [2012 Cal. Wrk. Comp. P.D. LEXIS 459], the WCAB came to this exact conclusion.

In Becerra, the WCAB did not deal with this issue as they found defendant failed to introduce evidence that the UR procedure was timely and served on the requesting physician. The WCAB indicated that a procedurally defective UR may be challenged at an expedited hearing pursuant to LC 5502(b) [5502]. The WCAB indicated that the applicant may challenge a procedurally deficient UR denial by proceeding to an expedited hearing in addition to using the LC 4062 process. Because defendant was obligated to conduct a timely and proper UR to deny authorization for requested treatment, the defendant has the burden of proving that its UR denial was timely and properly conducted. If the defendant does not meet that burden and the applicant produces substantial evidence at the hearing to support the award of treatment, the WCJ may properly determine the medical treatment issued at an expedited hearing. In this case the WCAB indicated defendant offered no evidence that the treatment request for therapy was timely denied or that its UR denial was transmitted to the treating physician. Applicant, on the other hand, produced substantial medical evidence in support of the request for the medical treatment. Reconsideration was denied.

COMMENTARY: The WCJ found that LC 4610(g)(1) [4610] requires that UR physician must be served with sufficient relevant medical evidence. In this case WCJ ruled that defendant failed to provide all reasonable and necessary medical information to the UR physician and therefore the UR procedure was not properly conducted.

The Corona case came to the same conclusion that failure to give all the reasonable and necessary medical information to the UR physician will result in the UR procedure being found not to be properly conducted. The WCAB held that an injured employee who disputes a UR denial of authorization for treatment must object and follow the LC 4062 process. The injured employee may also challenge procedural defects in the UR procedure in an expedited hearing and attempt to prove that the treatment request is based on substantial evidence. The WCAB in this case stated that the UR physician was not provided all relevant medical reports and information. The WCAB indicated that if the information had been provided, the result may have been different. The WCAB in this case found the UR denial was not properly conducted and there was substantial medical evidence to support an award of the treatment requested.

COMMENTARY: For the applicant to prevail at an expedited hearing in addition to proving that the UR denial was not timely or not properly conducted, he or she must present substantial evidence to support the need for treatment. A Workers’ Compensation Judge cannot award medical treatment at an expedited hearing even if the UR was not timely or properly conducted if there is no substantial medical evidence to support the requested treatment

This case concluded that a lack of a full medical background being presented to the UR physician is a procedural deficiency.

This case, like the Becerra case, concluded that the applicant can simultaneously proceed with an expedited hearing challenging that the UR decision was not timely were or not properly conducted at the same time following the LC 4062 QME procedure. If the applicant prevails in proving that the UR denial was not timely or not properly conducted, and there is substantial medical evidence to support the requested medical treatment, the applicant can cancel the LC 4062 procedure.

PRACTICE TIP: The best practice would be for the applicant to simultaneously file for an expedited hearing and challenge the UR decision as being procedurally defective at an expedited hearing. In this way, if the applicant does not prevail at the expedited hearing, he or she can proceed with the LC 4062 procedure. If the applicant prevails at the expedited hearing, he or she can cancel the LC 4062 process.

Defendant has the burden of proof at the expedited hearing that the UR was conducted timely and properly.

PRACTICE TIP: As can be seen by these cases, the defendant has the burden of proof that the UR was timely and properly made. The defendant must be prepared at every expedited hearing to introduce evidence that the UR denial was both timely and proper conducted (meets all the requirements set forth in the regulations). As the defendant found out in the Becerra case, even though the applicant did not appear to raise the issue of timeliness and failure to serve the requesting physician, the WCAB, finding no evidence in the record on these issues, found the UR was not timely and properly made.

If the defendant does not meet that burden of proof that the UR was timely and properly made, and the applicant produces substantial evidence at the hearing to support the award of treatment, the WCJ may properly determine the medical treatment issued at an expedited hearing. The LC 4062 process would then be terminated.

COMMENTARY: These WCAB panel decisions should still apply with the passage into law of SB 863 and the IMR process. The applicant should be able to challenge whether the UR was timely and properly conducted at an expedited hearing without going through the IMR process or challenge the process at the expedited hearing while simultaneously going through the IMR process. Should the applicant prevail at the expedited hearing, he or she could cancel the IMR process, and if the applicant does not prevail at the expedited hearing, he or she can proceed with the IMR process.

© Copyright 2013 LexisNexis. All rights reserved.

_________________________

California WCAB Noteworthy Panel Decisions Reporter

Get the edge on recent case law developments 

Designed especially for Lexis.com subscribers, this monthly reporter saves you research time so that you can quickly find recent panel decisions on key topics.

Purchase here (Beginning with January 2013 issue, PDF only).

For more information about LexisNexis products and solutions connect with us through our corporate site.