Sandhagen Opinion Beneficial to Injured Workers

Saturday, November 18, 2006 | 1

The following column is republished from the WorkCompCentral Professional Forums.

By York McGavin

Hi WCC Forum Members:

After reviewing the Sandhagen opinion from the 3rd DCA a few times, I note two no-brainer conclusions that are unavoidable:

First, untimely UR responses are inadmissible.

This lends further support for my suggestion that the PTP community submit their requests for authorization via certified return receipt mail -- rather than by faxing the request. As has been my experience, the vast majority of times UR responds, it is either an outright denial, or a partially authorized modification of the request -- which has the same legal effect as a denial, an opportunity to trigger the dispute resolution process as outlined in Labor Code 4062.1 for an unrepresented worker, or via the LC 4062.2 process for a represented worker.

Second, if the ER/IC objects to a medical determination, the ER/IC can trigger the dispute resolution process. However, the ER/IC must comply with the first sentence in LC 4062(a):

"If either the employee or employer objects to a medical determination made by the treating physician concerning any medical issues not covered by Section 4060 or 4061 and not subject to Section 4610, the objecting party shall notify the other party in writing of the objection within 20 days of receipt of the report if the employee is represented by an attorney or within 30 days of receipt of the report if the employee is not represented by an attorney."

Accordingly, if the injured worker is unrepresented, the ER/IC must "notify" the injured worker of the objection in writing "within 30 days of receipt of the report" to which the ER/IC is objecting. Once the unrepresented injured worker has been notified of the objection in writing, LC 4062.1(b) is applicable:

"If either party requests a medical evaluation pursuant to Section 4060, 4061, or 4062, either party may submit the form prescribed by the administrative director requesting the medical director to assign a panel of three qualified medical evaluators in accordance with Section 139.2. However, the employer may not submit the form unless the employee has not submitted the form within 10 days after the employer has furnished the form to the employee and requested the employee to submit the form. The party submitting the request form shall designate the specialty of the physicians that will be assigned to the panel."

Thus, the ER/IC can object in writing within 20 days, but the unrepresented injured worker gets to submit "the form prescribed by the administrative director requesting the medical director to assign a panel of three qualified medical evaluators" and the injured worker gets to "designate the specialty of the physicians that will be assigned to the panel" as long as the unrepresented injured worker timely submits "the form within 10 days after the employer has furnished the form to the employee and requested the employee to submit the form."

Failure by the unrepresented injured worker to submit the form within 10 days, after being provided a copy of the form by the ER/IC and after being requested by the ER/IC to submit the form to the Medical Unit, allows the ER/IC to submit the form to the Medical Unit with the ER/IC picking specialty of choice.

If the injured worker is represented, the dictates of LC 4062.2 apply. Per LC 4062(a), the ER/IC "shall notify the other party in writing of the objection within 20 days of receipt of the report." Per LC 4062.2(b), "either party may commence the selection process for an agreed medical evaluator by making a written request naming at least one proposed physician to be the evaluator. The parties shall seek agreement with the other party on the physician, who need not be a qualified medical evaluator, to prepare a report resolving the disputed issue. If no agreement is reached within 10 days of the first written proposal that names a proposed agreed medical evaluator, or any additional time not to exceed 20 days agreed to by the parties, either party may request the assignment of a three-member panel of qualified medical evaluators to conduct a comprehensive medical evaluation."

Thus, if the injured worker is represented, the ER/IC must object in writing within 20 days. Then, either party can make a written request to the other party to resolve the dispute by agreeing on an AME. If no agreement on an AME is "reached within 10 days of the first written proposal that names a proposed agreed medical evaluator," or if the parties agree on an extension of time up to 20 days and no AME is agreed upon, then either party can "request the assignment of a three-member panel of qualified medical evaluators" from the Medical Unit.

LC 4062.2(b) also mandates "The party submitting the request shall designate the specialty of the medical evaluator, the specialty of the medical evaluator requested by the other party if it has been made known to the party submitting the request, and the specialty of the treating physician."

Hence, if the injured worker is represented, there has been an objection and the parties have each suggested the name of a physician proposed to be the AME, without naming a specialty, but no agreement on an AME is reached "within 10 days of the first written proposal that names a proposed agreed medical evaluator," either party can "request the assignment of a three-member panel of qualified medical evaluators" from the Medical Unit naming any specialty of choice appropriate to resolve the dispute.

The first request received by the Medical Unit, for the assignment of a list of three PQME evaluators in the specialty of choice chosen by that party, will be the request that is acted upon by the Medical Unit.

The yet-to-be-determined issue of what happens when the ER/IC fails to timely object within the mandated time-frame of 30 days for an unrepresented injured worker, or 20 days for a represented injured worker, is still open to interpretation and judicial resolution. It appears that if the ER/IC fails to object within the mandated time-frame, it has waived its right to object, and the ER/IC should be estopped from later obtaining an AME or a PQME report on that disputed issue.

Another yet-to-be-determined issue is what happens if the PTP submits a request for authorization, the ER/IC fails or refuses to respond through UR, and the ER/IC does not object to the request for authorization by timely triggering the LC 4062(a) process?

Being as UR did not object, and the ER/IC did not timely seek to trigger the dispute resolution process per LC 4062(a), one has to wonder if the injured worker can proceed to an expedited hearing on the need for treatment based solely on the reports and request for authorization from the PTP, and/or proceed to hearing on a LC 5814 petition due to the last sentence in LC 4610.1:

"In no case shall this section preclude an employee from entitlement to an increase in compensation under Section 5814 when an employer has unreasonably delayed or denied medical treatment due to an unreasonable delay in completion of the utilization review process set forth in Section 4610."

The Willette WCAB en banc decision provides no illumination for the correct answer to this thorny question because in that case UR did indeed object.

These outcomes are consistent with the necessity of resolving disputes expeditiously -- which is beneficial to the injured worker.

York McGavin can be contacted at ymcgavin@socal.rr.com.

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