March 2010

U.R. Process is Mandatory

In a series of cases, the Courts and the WCAB have found the Utilization Review (UR) process to be mandatory. If an employer wishes to dispute a medical treatment request in an accepted injury case, even if the treatment involves a disputed part of body or spinal surgery, UR must be used.

The state Supreme Court last year found the UR process to be mandatory for employers disputing any treatment recommendation. The employer must either authorize the treatment or else quickly submit the request to UR for a timely determination.  The Court held that the employer couldn’t use the Labor Code section 4062 medical-legal process in place of UR; only the employee can initiate the QME request in a treatment dispute.  Sandhagen v. WCAB.

In Cervantes v. Safeco Ins. Co, the WCAB ruled in an en banc decision that the UR process must be used even when a request is made for spinal surgery.  Only if UR denies the surgery can a party then object under Labor Code section 4062(b) and initiate the spinal surgery second opinion process.  Because these strict time limits run concurrently, the ruling seems likely to deny employers the right to timely contest these issues.

Still in question is how to handle treatment requests for disputed body parts or body parts never previously raised.  In Burns v. Costco, a treating physician requested authorization for psyche treatment to deal with the effects of an admitted back injury.  A psychiatric injury had never been raised previously.  The WCAB held that the psyche treatment request should have been submitted to utilization review, even though the body part was technically in dispute.

In contrast, the WCAB addressed this issue in a footnote in Cervantes.  There, the WCAB noted an exception if the surgery’s medical necessity was undisputed and the defendant solely challenged whether the industrial injury caused or contributed to the need for surgery because the cause of a need for treatment is not an issue subject for utilization review. If the defendant solely disputes industrial causation, they still must object under 4062(b). The WCAB cited its 2004 en banc decision in the Simmons case.

The correct procedure for addressing treatment to disputed body parts will most likely be addressed through further case law.  Until there is clear guidance on the issue, the safest path is to submit treatment requests for disputed body parts to UR while also timely objecting under Labor Code 4062(a) and proceeding with a QME/AME.  This should adequately protect the employers’ rights to contest these issues.

LeBoeuf survives PD reforms

A WC Judge turned a 96% psyche PD rating into a 100% Permanent Total Disability award when the AME expressed the opinion that the applicant did not appear to be able to return to any job in the open labor market.  LeCornu v. County of Los Angeles. The Judge relied on the 1983 LeBoeuf case.

The California Supreme Court denied the employer’s appeal of the decision, suggesting that LeBoeuf is still good law, at least for disabilities rated under the 1997 schedule.  It is unlikely that LeBoeuf itself will be invoked for disabilities rated under the 2005 schedule, because in the Almaraz II case, the WCAB ruled that

A WC Judge turned a 96% psyche PD rating into a 100% Permanent Total Disability award when the AME expressed the opinion that the applicant did not appear to be able to return to any job in the open labor market.  LeCornu v. County of Los Angeles. The Judge relied on the 1983 LeBoeuf case.

The California Supreme Court denied the employer’s appeal of the decision, suggesting that LeBoeuf is still good law, at least for disabilities rated under the 1997 schedule.  It is unlikely that LeBoeuf itself will be invoked for disabilities rated under the 2005 schedule, because in the Almaraz II case, the WCAB ruled that

although the 2005 schedule may be rebutted, it is not permissible to do so by deviating from the four corners of the AMA Guides.

Rather than focusing on the Whole Person Impairment rating from the Guides, which do not rate one’s inability to compete in the open labor market, applicants may argue that a 100% loss of future earning capacity somehow causes the rating to adjust to 100% PD when applying the FEC modifier to the rating, an outcome analogous to LeBoeuf.

Lien Claimants are held to task

The courts have upheld the WCAB en banc case of Tapia v. Liberty Mutual, finding that the billings of an outpatient surgery center alone, and even without rebuttal, are insufficient to establish the reasonableness of the lien.  The WCAB rejected the lien claimant’s argument that to win, the defendant had the burden to produce evidence showing acceptance of lesser fees by other surgery centers in the same geographic area.  The Board found such evidence to be but one of several factors allowed in rebuttal.  A judge is not required to allow the full amount of a lien unreasonable on its face.

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