Getting Your Client Treatment in an Era of Utilization Review and Independent Medical Review
| Publication year | 2018 |
| Author | JODY M. KAUFMAN, ESQ. |
JODY M. KAUFMAN, ESQ.
KRISTEN M. CORTEZ, ESQ.
Jody M. Kaufman is the principal and lead attorney of Stout & Kaufman, APLC, and a Certified Specialist in Workers' Compensation Law. Ms. Kaufman was educated at University of Southern California, where she graduated cum laude with a Bachelor of Science degree, majoring in business and minoring in environmental studies. In 1999 she earned a Juris Doctorate degree from Loyola Law School in Los Angeles and was admitted to the State Bar of California. Ms. Kaufman founded and is still actively involved in the Santa Barbara Teen Legal Clinic, a nonprofit legal service organization. This organization provides free legal representation to youth in Santa Barbara on a wide array of legal matters and educates them about their legal rights and responsibilities. Ms. Kaufman and her husband, Bryan Thompson, have two daughters and a son. Ms. Kaufman is an avid sports fan and has been a soccer coach and player for over 40 years.
Kristen M. Cortez is an associate attorney at Stout &Kaufman, APLC. Ms. Cortez graduated from Loyola Marymount University with a Bachelor of Arts in Business Administration, an emphasis in business law and marketing, and a minor in English. Thereafter, Ms. Cortez earned a Juris Doctorate degree from Southwestern Law School and was admitted to the State Bar of California.
It goes without saying that it has become increasingly difficult for injured workers to obtain medical treatment in the workers' compensation system. We have all experienced the dreaded Utilization Review (UR) denial of treatment that our clients need in order to recover and return to work. While UR and Independent Medical Review (IMR) denials of treatment are extremely frustrating, all hope is not lost. This article presents a road map on the various ways to get your client medical treatment in a post-SB 899 and -SB 863 world.
First things first: At a minimum, you should appeal UR denials to IMR within the statutory time frame of 30 days of issuance of the denial. Even if you're going to be taking other action, such as a challenge of the UR based on timeliness, in order to protect all avenues of relief you should still appeal the UR decision to IMR
On receipt of any UR denial, and after preserving your appeal to IMR, the threshold question is whether the UR is timely. In determining timeliness, the insurance company has 5 days from receipt of the treatment recommendations on a request for authorization (RFA) form to review and determine whether the recommended treatment is reasonable and necessary. If the UR reviewer requires and requests additional information, the reviewer is given additional time (up 14 days in all) to complete the review. Under either of these time scenarios, if the
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UR process is not completed during the time frame, it is untimely on its face. The result is that the WCAB then has jurisdiction over whether the medical treatment is reasonable and necessary. Dubon v. World Restoration, Inc. (2014) 79 Cal.Comp.Cases 1298.
Even if the UR denial is timely on its face, some recent cases may render an UR denial untimely based on various defects in the service of the UR decision. For example, a UR denial can be considered defective if the decision is not communicated timely to the applicant's attorney (see Bodam v. San Bernardino County (2014) 79 Cal.Comp. Cases 1519 (Significant Panel Decision) or if peer-to-peer reviews are not communicated timely (see Van Buren v. Primitive Logic, 2015 Cal.Wrk.Comp. P.D. LEXIS 619). The result in those cases has been to allow WCAB jurisdiction over whether the medical treatment is reasonable and necessary.
If the UR is untimely and there is substantial medical evidence to support the treatment request, file a Declaration of Readiness to Proceed (DOR) for an expedited hearing. The injured worker can then proceed to trial and let the judge determine whether the recommended treatment is reasonable and necessary. If there is no substantial medical evidence to support the recommended treatment, you should acquire additional evidence to support...
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