Workers’ Comp. Alert: WCAB Significant Panel Decision Emphasizes Timeliness For A Valid UR Decision

On November 20, 2014, the WCAB issued Bodam v. San Bernardino County/Department of Social Services, and declared it to be A Significant Panel Decision, which means it is citable before the board, but is not persuasive authority on appeal. In Bodam the board denied the defendant’s request that it uphold a Utilization Review (UR) opinion denying spinal surgery. The panel held that though the UR decision was timely made, it was not timely communicated, and a UR decision is invalid if it fails to comply with the communication obligation set out in Labor Code Section 4610(g)(1).

Mr. Bodam’s treating physician requested authorization to perform a three level spinal fusion and sent the request to SCIF’s UR agent, Forte, on October 28, 2014. On October 31, 2014, Forte made the decision to deny the treatment, and on November 5, 2014, Forte sent a written denial to the injured worker and his physician. There was no evidence accepted by the WCAB that Forte or SCIF notified the physician of the denial within 24 hours by phone or facsimile.

Labor Code section 4610(g)(1) lays out the stringent time requirements which must be followed when issuing a denial or modification of a medical treatment request. The employer has five working days from receipt of the information reasonably necessary to make a determination, but it must make a decision in no more than 14 days from the date the request for medical treatment is received from the physician. Additionally, section 4610(g)(3)(A) states that the decision must be conveyed to the physician within 24 hours by telephone or fax and in writing within two business days from the date of the decision.

At trial the Bodam judge determined that the UR was untimely, because it was communicated late, and that the judge, therefore, had jurisdiction to determine the necessity of the treatment. The judge also based his determination on the absence of a signature on the UR report. The defendant sought removal to the WCAB, asserting that the UR decision was timely, since the decision itself was timely. Additionally, it raised the issue that there is no obligation for the UR report to be signed, and that in any event there is no statutory support for the WCAB to take jurisdiction over the decision whether the prescribed treatment is necessary.

The Board in Bodam holds that a failure to comply with the communication obligation of Section 4610 renders the UR decision invalid. It also concludes that an invalid UR decision puts into the hands of the WCJ the power to decide if the prescribed treatment is medically necessary.

Bodam is consistent with the reasoning the Board set forth in Dubon v. World Restoration 79 CCC 1298 (Dubon II). There the Board determined that it has jurisdiction to decide whether a request for medical treatment is reasonable when a UR decision does not issue timely, even though the applicant seeks IMR review of the decision. (The Dubon II decision is the subject of a Petition for Writ of Review.) In Bodam, the Board emphasizes that it will strictly enforce the time limits of Labor Code Section 4610 in determining the validity of a UR decision, and that there is no exception to its stance that an invalid UR opens the door for WCAB oversight of the medical necessity decision.

This document is intended to provide you with general information about workers’ compensation law developments. The contents of this document are not intended to provide specific legal advice. This communication may be considered advertising in some jurisdictions.

December 1, 2014