Communication of UR Decision Must be Timely to Go to IMR

Tuesday, November 25, 2014 | 0

The rains are a ‘coming. The cold is setting in. Turkey day is almost upon us, which, of course, means that we can expect a flood of “Black Friday” related injuries and Christmas decorations starting November 28. But, before we look too far ahead, there’s this Monday, and a “Significant Panel Decision” issued by the California Workers' Compensation Appeals Board.

This one is on the subject of utilization review, which continues to be somewhat of a clumsy, frequently mutating wolf in the deep dark woods of workers’ compensation.

It makes sense – no? Arguably the most expensive and valuable benefit available to injured workers is the potentially limitless medical treatment. The utilization-review, independent medical review procedure puts a pretty solid clamp-down on this, no?

In the matter of Bodam v. San Bernardino County, the issue of UR timeliness was again explored, as UR timeliness appears to be the only effective challenge to UR nowadays (other than a vigorous applicant’s attorney repeatedly changing treating physicians until the requested treatment is authorized).

Applicant’s primary treating physician requested authorization for a three-level fusion surgery by facsimile (the request was made by facsimile, the procedure was not to be performed over facsimile), and defendant referred the request to utilization review that same day. The UR vendor denied treatment three days later, and defendant mailed the decision five days after that (on the eighth day after the request was made).

So what’s the big deal? Treatment was timely denied… right? Not so much.

The WCAB held, in this significant panel decision, that the timelines for communicating the decision are equally mandatory. The WCAB cited Labor Code Section 4610(g)(1) noting that a UR decision “to approve, modify, delay, or deny requests by physicians for authorization prior to … the provision of medical treatment services to employees shall be communicated to the requesting physician within 24 hours of the decision. Decisions resulting in modification, delay, or denial of all or part of the requested health care service shall be communicated to physicians initially by telephone or facsimile…”

In other words, if UR denies, modifies or delays a request prior to the treatment being provided, then the decision has to be faxed or called in to the doctor within 24 hours.

Do not go to IMR; do not collect $200; go directly to WCAB Medi-Jail.

The WCAB held that the defendant’s UR process was defective because the UR decision was not communicated to the doctor within 24 hours of reaching a decision, AND because it was not communicated in writing to the injured worker, the applicant’s attorney and the doctor within two business days of the decision being made.

The WCAB then held that the workers' compensation judge properly ordered development of the record prior to making a determination as to the merits of the request for authorization.

Your humble blogger is aware that some UR vendors immediately fax and mail out the determination directly to the injured worker, requesting physician, applicant’s attorney, adjuster and even defense attorney. Perhaps this is a good practice for all UR vendors to adopt?

Gregory Grinberg is a defense attorney in San Mateo, California. This column was reprinted with his permission from his WCDefenseCA blog.