By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Staff’ Compensation Appeals Board
The June 13, 2024 version of the LexisNexis Staff’ Compensation eNewsletter included an article that mentioned the necessities of an expedited request for medical therapy and the utilization evaluation (UR) of that request (see https://www.lexisnexis.com/community/insights/legal/workers-compensation/b/recent-cases-news-trends-developments/posts/california-when-is-an-expedited-review-of-a-treatment-request-required). The article centered on the panel resolution in Castellanos v. Finest Purchase, Inc., 2024 Cal. Wrk. Comp. P.D. LEXIS 122.
Briefly, in Castellanos, the treating doctor submitted a request for authorization (RFA) of medical therapy, together with 12 visits to an outpatient transitional day therapy program encompassing bodily remedy, occupational remedy, speech remedy, and neuropsychology. The treating doctor marked the shape to point that an expedited evaluation of the RFA was required. The utilization evaluation (UR) of that request was not accomplished inside the 72-hour timeframe supplied in Rule 9792.9.1 however was denied inside the five-day interval supplied in subdivision (c)(3) of the rule. Applicant requested an expedited listening to, claiming that for the reason that UR denial was premature, the WCAB had jurisdiction to find out entitlement to medical therapy. Following the listening to, the WCJ issued a call discovering that UR was well timed and, due to this fact, the WCAB lacked jurisdiction to think about the appropriateness of the beneficial therapy. The WCJ defined that though the RFA was marked as requiring an expedited evaluation, the treating doctor didn’t substantiate the request with a proof/documentation that applicant confronted an imminent or severe risk to her well being and security such {that a} UR resolution issued inside the regular five-day timeframe can be detrimental to her well being.
On reconsideration of that call, an Appeals Board panel affirmed the WCJ and, in its Resolution after Reconsideration, set forth the parts of a request for expedited UR as follows: (1) the requesting doctor should certify and doc in writing the rationale(s) why an expedited evaluation is important; (2) the documentation should set up that the injured employee faces an imminent or severe risk to their well being; or (3) that the traditional five-day timeframe for UR can be detrimental to the employees’ well being.
Since that article appeared, one other Appeals Board panel has issued an Opinion and Order Denying Petition for Reconsideration that expands the parts of a request for expedited UR evaluation. The case is Correa v. Show Merchandise, Inc., 2024 Cal. Wrk. Comp. P.D. LEXIS 198.
The Info in Correa
Silvia Correa (applicant) sustained an admitted cumulative harm to her wrists, lumbar backbone, respiratory dysfunction, and psyche in the course of the interval from March 28, 2008, to July 12, 2013, whereas employed by Show Merchandise, Inc., insured by Vacationers Property Casualty Firm (defendant).
Dr. Shamie served as applicant’s major treating doctor. On July 12, 2023, defendant stipulated to supply applicant with 4 hours of dwelling well being care, seven days per week for a interval of six months.
On February 16, 2024, Dr. Shamie submitted an RFA during which he requested dwelling well being care help 12 hours per day, seven days per week for a interval of six months, together with transportation to medical therapy. Dr. Shamie marked the RFA as requiring expedited evaluation.
5 days later, on February 21, 2024, defendant issued its UR indicating that the requested therapy was non-certified.
A trial was held on March 20, 2024, to think about whether or not defendant’s UR non-certification was well timed and, if not, whether or not the requested therapy was medically needed. Further points included whether or not expedited evaluation was acceptable and primarily based on substantial proof; whether or not the WCJ may take into account the rationale of the UR resolution in figuring out medical necessity; and whether or not the prior stipulations of the events relating to dwelling well being care have been nonetheless in impact.
On April 3, 2024, the WCJ issued a call. That call discovered, in related half, that the UR non-certification was premature as a result of it issued greater than 72 hours after the request, that the request for dwelling well being care and medical transportation was affordable and needed, and that there was no proof {that a} medical skilled reviewed the RFA inside the 72-hour interval required for an expedited evaluation.
Defendant sought reconsideration, contending that the RFA did not substantiate the necessity for expedited evaluation, particularly, why there’s a want for elevated dwelling well being care past its prior settlement to supply 4 hours of dwelling well being care providers per day, seven days per week for a interval of six months. Because of this, defendant argued that its UR resolution was well timed as a result of it issued inside 5 days of the RFA.
The panel’s evaluation
In its Opinion and Order Denying Reconsideration (opinion), the panel opinions the statutory and regulatory underpinnings of the UR course of. It begins that evaluation by acknowledging that Labor Code part 4610, which established UR because the necessary course of to judge requested medical therapy inside California’s staff’ compensation system, supplies for the evaluation of concurrent, potential, or retrospective medical therapy requests inside 5 days of the request. It additional acknowledges the statute’s expedited evaluation course of, which should be carried out inside 72 hours of a request if the worker’s medical situation is one during which the worker faces an imminent and severe risk to their well being, or the five-day timeframe for appearing on the requested therapy can be detrimental to their life or well being or jeopardize their capacity to regain most operate (Lab. Code § 4610(i)(3).)
Subsequent, the opinion references the rules adopted by the Administrative Director (AD) that debate the timeframes inside which UR should be carried out. AD Rule 9792.9.1(c)(3) requires the UR of concurrent and potential medical therapy requests to be carried out inside 5 enterprise days of the RFA. Subsection (4) of the rule requires the UR of expedited medical therapy requests to be carried out inside 72 hours of the RFA.
The opinion then explains its interpretation of Rule 9792.9.1. Particularly, that the place an RFA is marked as requiring an expedited evaluation, such evaluation should be carried out inside 72 hours of the request except the RFA will not be moderately supported by proof establishing that the worker faces an imminent and severe risk to their well being. However the place an RFA marked as expedited fails to make such displaying, the timeframe for UR of the request is 5 enterprise days.
The opinion then discusses the reasoning provided by the WCJ in help of his discovering that the RFA in query required an expedited evaluation. The WCJ framed the query earlier than him as, “in a case the place a health care provider has designated a case for expedited evaluation, who will get to find out whether or not that designation was acceptable, and at what level can that call be made?” Because the opinion then notes, the WCJ regarded to the legislative intent behind the enactment of Labor Code part 4610 and concluded that the aim of necessary UR was to bolster California’s coverage of offering injured staff with the best high quality of medical care by making certain that medical professionals moderately than non-medical personnel decide the reasonableness and necessity of requested medical therapy. To effectuate that intent, the WCJ reasoned {that a} medical skilled moderately than a claims administrator should decide whether or not the report helps the necessity for expedited evaluation.
The opinion goes on to clarify that there’s help for the WCJ’s evaluation and cites two Board panel selections. The primary quotation is to R.J. Corridor v. Western Medical (December 13, 2017, ADJ9619437) 2017 Cal. Wrk. Comp. P.D. LEXIS 581, during which an Appeals Board panel held {that a} defendant will not be allowed to ignore the treating doctor’s characterization of a request by merely declaring that an RFA didn’t meet the standards for an expedited evaluation. The second quotation is to Diaz v. Pacific Coast Framers (August 14, 2023, ADJ14244911) 2023 Cal. Wrk. Comp. P.D. LEXIS 211. In Diaz, supra, an Appeals Board panel accepted as well timed defendant’s UR willpower, which issued 5 days after receipt of the RFA, and located that the request did not substantiate a foundation for expedited evaluation as a result of the evaluation was carried out by a doctor and particularly addressed whether or not the RFA established an imminent and severe risk to the injured employee’s well being.
The opinion observes that there isn’t a indication within the report of Correa {that a} medical evaluation (i.e., a evaluation carried out by a medical skilled) to judge the need of an expedited evaluation occurred. Additional, the opinion notes an absence within the report of any motion taken by defendant inside the 72-hour interval required in Rule 9792.9.1(c)(4).
The panel’s conclusions
The panel completes its evaluation by concluding that beneath Rule 9792.9.1(c)(4), an RFA marked as expedited includes two determinations, each of that are medical. First, the reviewer should make an preliminary willpower as as to if the request within reason supported by proof establishing that the injured employee faces an imminent and severe risk to their well being, or that the timeframe for non-expedited evaluation can be detrimental to the injured employee’s situation. Second, the reviewer should decide whether or not the requested therapy within reason medically needed, as supported by evidence-based medication and relevant therapy tips.
Then the panel turns to the problem of who’s greatest suited to make these determinations. With the commentary that every of the 2 requisite determinations contain an analysis of medical points, together with the urgency of the therapy, the severity of the injured employee’s situation, the probability of imminent or severe risk to the injured employee’s well being, the interaction between evidence-based medication and therapy tips and the requested therapy, the panel additionally concludes {that a} medical skilled moderately than a claims skilled ought to make each determinations.
As to defendant’s declare that the RFA fails to determine why there’s a want for a rise within the hours of dwelling well being care beforehand agreed to, the panel factors out that the WCJ’s resolution particularly addressed this competition and emphasizes the truth that Dr. Shamie described applicant as in want of in depth help with actions of day by day dwelling and characterised her husband’s caregiving as important, integral, and very important in offering help for consuming, bathing, dressing, grooming, transportation, and medical administration. Primarily based on these elements, the WCJ discovered the RFA to be in keeping with therapy suggestions as outlined in relevant therapy tips. For these causes, the panel concludes that the house well being care providers outlined within the RFA are medically affordable and needed.
The implications of Correa
Whereas the panel opinion in Correa will not be binding precedent, it makes a compelling argument that’s in keeping with the intent of the legislature in its enactment of UR because the necessary course of for figuring out the need and appropriateness of medical therapy requests. The rationale underlying the legislation is the idea that medical professionals are greatest suited to judge the need and appropriateness of therapy requests in keeping with the rules of evidence-based medication and relevant therapy tips. In recognition that an injured employee’s medical situation would possibly require some medical therapy to be supplied on an pressing moderately than routine foundation, the legislature additionally supplied for an expedited evaluation course of to be carried out inside 72 hours of the submission of the RFA. That course of is embodied in Labor Code part 4610(i)(3) and Rule 9792.9.1(c)(4), which require the doctor in search of evaluation of a therapy request on an expedited foundation to certify the request and supply written documentation as to the rationale(s) why an expedited evaluation is important by establishing that the injured employee faces an imminent or severe risk to their well being, or that the traditional five-day timeframe for UR can be detrimental to the employees’ well being. (See Castellanos, supra.) As a result of evaluation of an expedited RFA requires the UR reviewer to make two distinct medical determinations, that’s, (1) is the request supported by medical proof and (2) is the proposed therapy affordable and needed in accordance with evidence-based medication and relevant therapy tips, such determinations are greatest made by a medical skilled and never a claims skilled. (Correa, supra.) These conclusions are in keeping with the said legislative intent underlying UR. Furthermore, they mirror widespread sense. They is probably not binding, however it could behoove claims personnel to take them to coronary heart.
Reminder: Board panel selections aren’t binding precedent.
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